Blakely v. Hammerel

• Decision Date: 30 October 1895
• Citation: 62 Minn. 307,64 N.W. 821
• Parties: BLAKELY v. HAMMEREL, SHERIFF, ET AL.
• Court: Minnesota Supreme Court

62 Minn. 307

64 N.W. 821

BLAKELY

v.HAMMEREL, SHERIFF, ET AL.

Supreme Court of Minnesota.

Oct. 30, 1895.

(Syllabus by the Court.)

Evidence considered, and held sufficient to require the trial court to have submitted the question of fraud to the jury.

Appeal from district court, Stearns county; D. B. Searle, Judge.

Action by Hugh Blakely against John P. Hammerel, sheriff, and others. Verdict for plaintiff. From an order refusing a new trial, defendants appeal. Reversed.

Morphy, Ewing, Gilbert & Ewing, for appellants.

Geo. H. Reynolds, for respondent.

BUCK, J.

On the 27th day of March, 1894, the defendants Tarbox, Schliek & Co. recovered a judgment against one I. G. Swanson and two other parties for the sum of $272.12, and on the 17th day of said month the defendant the B. T. Tobacco Company recovered a judgment against the same parties for the sum of $113.12. On July 12, 1894, executionswere issued on each of said judgments under the seal of the court, and directed to the defendant Hammerel, as sheriff of the county where the judgments were recovered commanding him to satisfy out of the property of the judgment debtors the respective sums in each judgment; and in obedience to said writ the sheriff levied upon the property described in the complaint as the property of said I. G. Swanson, and, after giving public notice, sold said property. On the 29th day of September, 1893, Swanson executed a note and chattel mortgage to George H. Partridge, who is designated in the mortgage as trustee. The consideration named in the mortgage was $1,081.50, and the property mortgaged was described as “all that stock of dry goods, groceries, clothing, notions, and hardware now owned by said Iver G. Swanson, of the alleged value of $1,277.” It appears that this mortgage was intended to secure several different claims against Swanson, aggregating about the consideration named in the mortgage, and including the indebtedness of Tarbox, Schliek & Co. and the B. T. Tobacco Company, which indebtedness existed at the time of the execution of the chattel mortgage, and upon which the foregoing judgments were subsequently obtained. The latter-named parties repudiated the mortgage, as it appears they had a right to do. The plaintiff, Hugh Blakely, is the father-in-law of Swanson. Partridge, as trustee, on the 31st day of May, 1894, assigned the mortgage and the amount due thereon to Blakely, who, as such assignee, brings this action against the several named defendants for taking and converting the mortgaged goods so levied upon and sold by said sheriff. The mortgage contains this clause: “It is understood and agreed that said Swanson shall act as the agent of Partridge, and has the right to sell and...