Fairweather v. Nelson

• Citation: 76 Minn. 510,79 N.W. 506
• Parties: FAIRWEATHER v. NELSON et al.
• Decision Date: 09 June 1899
• Court: Supreme Court of Minnesota (US)

76 Minn. 510

79 N.W. 506

FAIRWEATHER

v.NELSON et al.

Supreme Court of Minnesota.

June 9, 1899.

Appeal from district court, Marshall county; Frank Ives, Judge.

Action by Peter Fairweather against Ole Nelson and others. Finding for plaintiff. From an order for plaintiff, Fred Tiedt appeals. Reversed.H. Steenerson and A. Grindeland (W. E. Rowe, of counsel), for appellant.

E. M. Stanton and A. A. Miller, for respondent.

MITCHELL, J.

This was an action to recover possession of a span of horses from the defendant Tiedt, whom we shall hereafter call the ‘defendant.’ Both parties claim under Nelson. When the evidence closed, the court directed a verdict for the plaintiff, and from an order denying a new trial the defendant appealed.

The evidence disclosed that in 1893 Nelson executed to plaintiff a chattel mortgage on a span of mules; that in June, 1897, Nelson, with the consent of the plaintiff, traded the mules for the span of horses in controversy, which remained in Nelson's possession until he sold and delivered them to the defendant, on the 16th of the following October. The evidence at least tends to show that the trade was not made in plaintiff's name, and that there was no agreement between him and Nelson that it should be; that there was no agreement or understanding between them that Nelson should execute to plaintiff a mortgage on the horses, or that they should be applied on the mortgage debt, or that they should be subject to the lien of plaintiff's mortgage in place of the mules. If such were the facts, the unincumbered title to the horses would be in Nelson, and plaintiff would have no lien upon them; neither would Nelson be a trustee of the title for him. The mules having been sold with plaintiff's consent, the lien of his mortgage on them was discharged; and in such case it would only be by virtue of some agreement between the mortgagor and mortgagee that the property should be sold in the name of the latter, or that the property or money received in exchange should be the mortgagee's, or be applied on the mortgage debt, or subjected to the lien of the mortgage, as a substitute for the property sold, that the mortgagee would have any lien upon or right to it. The plaintiff introduced evidence tending to show that during the time the mules were in Nelson's possession, between June and October, he, on several occasions, stated to third parties that the mules belonged to the plaintiff. If the horses were not the plaintiff's...