Benedict v. Farlow

• Decision Date: 17 April 1891
• Docket Number: 40
• Citation: 27 N.E. 307,1 Ind.App. 160
• Parties: BENEDICT ET AL. v. FARLOW
• Court: Indiana Appellate Court

27 N.E. 307

1 Ind.App. 160

BENEDICT ET AL. v. FARLOW

No. 40

Court of Appeals of Indiana

April 17, 1891

From the Madison Circuit Court.

Judgment affirmed, with costs.

C. M Greenlee, G. M. Ballard and E. B. Goodykoontz, for appellants.

M. S Robinson, J. W. Lovett and S. M. Keltner, for appellee.

REINHARD J. ROBINSON, J., having been of counsel in this case, did not take any part in this decision.

OPINION

REINHARD, J.

Upon the authority of City of Hammond v. New York, etc., R. W. Co., 126 Ind. 597, 27 N.E. 130, we assume jurisdiction in this case, notwithstanding the fact that one of the judges is disqualified to sit therein on account of his former connection with the same as counsel.

Error is alleged by the appellant in the overruling of the demurrer to the second paragraph of the answer, and in overruling the motion for a new trial.

The action is brought by the appellants against the appellee for the recovery of personal property upon which the appellants claim to hold a chattel mortgage. The answer is in two paragraphs, the first being the general denial, and the second, to which the demurrer was overruled, is by way of estoppel, and is, in substance, as follows:

That the property in controversy is a bay horse colt; that on the 16th of August, 1886, one Nelson Gunn was the owner of the same, and on that day said Gunn and one John Wright executed to the plaintiffs a chattel mortgage upon said property, which was then a mere sucking colt, and that this mortgage constitutes the sole claim which the plaintiffs have on said colt; that in September, 1886, said Gunn, who had been allowed by the plaintiffs to retain possession of said colt, made a public sale of all his personal property, including said colt, and sold the same at public outcry and auction, together with the mare then suckling the same; that after the execution of the mortgage and before the sale, the plaintiff, Daniel Benedict, for himself and his co-plaintiff, who was a joint owner and partner with him in said property, agreed with Gunn that he might sell the colt; that said Daniel Benedict was present at the sale and stood by and saw the defendant purchase the colt for its then full value, and never asserted or claimed any interest in or title to the same, nor did he give any notice whatever, at said sale, that he had or claimed any interest therein; that defendant purchased the colt in good faith and without notice that plaintiffs had or claimed any interest in such property, and in the belief that it was the absolute property of said Gunn and was clear of encumbrance, and that if plaintiffs had asserted any claim to said colt the defendant would not have purchased it; that the colt, when defendant purchased it, was worth only forty dollars; that defendant has kept and fed and reared it at his own expense, and that it has increased in value until it is now worth one hundred dollars. Wherefore, etc.

We think the facts set out in this paragraph of the answer are sufficient to constitute an estoppel. Hosford v. Johnson, 74 Ind. 479.

Where a mortgagee of chattels leaves the mortgaged property in the possession of the mortgagor, with license to sell or trade the same, he and his assigns are estopped to set up any interest in the property against one who acquires the same by purchase or exchange of other property from the mortgagor, and with the knowledge of the mortgagee. Carter v. Fately, 67 Ind. 427.

In the case at bar the averment is that the mortgagees not only gave permission to the mortgagor to sell the property, but that one of the mortgagees stood by and saw the appellee purchase the colt, without setting up or claiming any interest in it. Where such permission is given and the...