Ellingbor v. Brakken

• Decision Date: 09 December 1886
• Citation: 30 N.W. 659,36 Minn. 156
• Parties: ELLINGBOR v BRAKKEN.
• Court: Minnesota Supreme Court

36 Minn. 156

30 N.W. 659

ELLINGBORvBRAKKEN.

Supreme Court of Minnesota.

December 9, 1886.

(Syllabus by the Court.)

When a chattel mortgage is acknowledged, the certificate of acknowledgment entitles it to be read in evidence “in all courts of justice.” Gen. St. Minn. 1878, c. 73, § 67. A copy of such mortgage, when certified by the proper town clerk to be a true copy of the original on file in his office, is receivable in evidence in like manner and with like effect as the original mortgage. Gen. St. Minn. c. 39, § 7.

Where A. executes to B. a mortgage of personal property, C., not being a subsequent purchaser from or mortgagee of A., nor a creditor of A. who has laid hold of the mortgaged property by legal process, is not in position to object to the validity of the mortgage.

Where property sought to be recovered in an action of claim and delivery is a certain undivided fractional part of a certain specified quantity of property, uniform in quality and value, and susceptible of a fair and equal division by count, measurement, or weight, (as, for instance, grain in bulk,) the description and proof of the property sought to be recovered, as such undivided fractional part of the specified quantity, is sufficiently specific.

Kellogg v. Olson, 24 N. W. Rep. 366, followed as to dispensing with proof of demand.

Appeal from district court, Goodhue county.

Plaintiff brought this action in the district court of Goodhue county, for the recovery of possession of certain grain in the hands of defendant. It was admitted that defendant, being the owner of a farm, made an agreement, February, 1877, with one Hermanson, under which they were to work said farm on shares; Hermanson to receive one-fourth of the grain raised during that year. In August, 1877, Hermanson gave plaintiff a chattel mortgage upon his undivided fourth of the grain so raised. All the grain raised and harvested was put into defendant's granary, and barn on his farm, and no part of it was delivered to or set apart for Hermanson.

Plaintiff alleged, and offered evidence to show, that, after default in the chattel mortgage, he demanded of defendant delivery to him of Hermanson's said undivided fourth. The existence of the chattel mortgage, and the making of a demand, were put in issue by the answer. On the trial, the chattel mortgage, duly acknowledged, was offered in evidence, and received, over defendant's objection. A verdict was ordered for plaintiff. From an order refusing a new trial defendant appeals.

Wm. Colvill, for respondent, Ellingbor.

J. C. McClure, for appellant, Brakken.

BERRY, J.

1. When a chattel mortgage is acknowledged, the certificate of acknowledgment entitles it to be read in evidence “in all courts of justice.” Gen. St. 1878, c. 73, § 67. A copy of such mortgage, when certified by the proper town clerk to be a true copy of the original on file in his office, is receivable in evidence in like manner, and with like effect, as the original mortgage,(Gen. St. 1878, c. 39, § 7;) that is to say, it is, under the statute first cited, entitled to be read in evidence “in all courts of justice.”

2. Where A. executes to B. a mortgage of personal...