Deeters v. Sellers

• Decision Date: 26 June 1885
• Citation: 1 N.E. 854,102 Ind. 458
• Parties: Deeters v. Sellers and others.
• Court: Indiana Supreme Court

102 Ind. 458

1 N.E. 854

Deeters

v.Sellers and others.

Supreme Court of Indiana.

Filed June 26, 1885.

Appeal from Whitley circuit court.

C. Clemans, for appellants.

Haymond & Royse, for appellee.

Elliott, J.

The complaint of the appellee alleges that he is the owner and entitled to the possession of personal property which is specifically described, and that it is unlawfully detained by the defendants. A special finding of facts was made and conclusions of law stated. From the finding we condense the material statements: The action was commenced July 5, 1883. On the twenty-ninth day of the preceding May, Samuel M. Deeters executed to his brother, the defendant George C. Deeters, a chattel mortgage on the property to secure the payment of a promissorynote of $100. The mortgage gave the mortgagor the right of possession, but provided that if he sold or incumbered, or offered to sell or incumber, the property, the mortgagee might immediately take possession. The mortgage was duly recorded on the day it was executed. At the time of the execution of the mortgage the property mortgaged was not the individual property of the mortgagor, but was owned by a partnership, composed of the plaintiff Perry Sellers, and the mortgagor. The plaintiff did not know of the execution of the mortgage, and has never consented to its execution. The debt secured by it was the individual debt of the mortgagor, Samuel M. Deeters. At the time of the execution of the mortgage the mortgagor was indebted to the plaintiff in a sum much greater than the value of the property, on account of money advanced to the partnership. At the time of the execution of the mortgage the plaintiff had possession of the property in pledge as security for the indebtedness of the mortgagor to him. Within a few days after the execution of the mortgage the partnership was dissolved, and an accounting had, whereby it was agreed that the property should be owned and held by the plaintiff. It appeared from the accounting that Samuel M. Deeters was indebted to plaintiff in the sum of $158.39, and that there was no partnership property out of which it could be made. After the accounting, and while the property was in the possession of the plaintiff, the defendant George Deeters and one William Breezely secured possession of the property, by exhibiting the mortgage and representing that the former could obtain the property by legal proceedings. The defendant placed the property in possession of Breezely, from whom the plaintiff demanded it, but the demand was met by a refusal. Two days after this demand the plaintiff filed his complaint, and at the time it was in the possession of George C. Deeters, who claimed it under the chattel mortgage.

The second conclusion of law is the only one that it is necessary to state. It is as follows: “The plaintiff is entitled to recover against the defendant George C. Deeters, in this action, the possession of said property described in the complaint, and to have a judgment against him for a return of said property.” A motion was made for...