Horton v. Williams

• Decision Date: 07 January 1875
• Citation: 21 Minn. 187
• Parties: HIRAM T. HORTON <I>vs.</I> ALLAN K. WILLIAMS.
• Court: Minnesota Supreme Court

Page 187

21 Minn. 187

HIRAM T. HORTON vs. ALLAN K. WILLIAMS.

Supreme Court of Minnesota.

January 7, 1875.

Replevin for a pair of horses and a double harness. Plaintiff claimed title from one Sleator, by a chattel mortgage of this and other property, made November 15, 1869, and filed November 18, in the town of Rock Dell, where Sleator resided, and also by a bill of sale made September 11, 1871. Defendant claimed title from Sleator by a chattel mortgage

of the horses only, made November 18, 1870. Sleator's farm, where he kept the horses in his possession until they were taken from him by defendant, September 30, 1871, was partly in Rock Dell, and partly in the town of High Forest. In his mortgage to defendant, he is described as of High Forest, and defendant filed his mortgage in that town on November 23, 1870, and did not file it in Rock Dell until September 14, 1871, three days after the sale to plaintiff.

At the trial in the district court for Olmsted county, before Van Dyke, J., it appeared that plaintiff's mortgage covered, besides the horses and harness, thirty calves, thirty tons of hay, three milch cows, seven hundred bushels of wheat, four hundred bushels of oats, two yearling heifers, a pair of steers, a yoke of oxen, a lumber wagon and a sulky rake. The plaintiff testified that his mortgage was given to secure an indebtedness to the amount named therein, and that he had no other object in taking it but to secure such debt. On cross-examination, he testified: "The lumber wagon, I can't tell what became of it; I can't say that any of the pay for it went to me. I expect I got a part of the calves, mentioned in the mortgage, in the bill of sale; I can't tell how many. The hay included in the mortgage was fed out to the cattle. I left it with Sleator. I left all the property included in the mortgage with Sleator. * * The seven hundred bushels of wheat, Sleator had, and used it up for seed and food, or carried it off and sold it; I never got any of it, or any of the pay for it. The four hundred bushels of oats went in the same way; I never got any of the oats or any pay for them. I can't tell what became of the yearling heifers; they might have been killed for beef, or strayed off and been lost. I can't tell what became of the two-year-old steers. I think the hay, wheat and oats were fed out and used up with my knowledge. I was there and saw it done." On re-direct examination, he testified: "The hay, oats and wheat were all used up before date of defendant's mortgage. I gave my consent that Sleator should sell the wheat. The oats also were fed out prior to November, 1870, and no part of them applied on my mortgage. I never got a bushel of the grain."

It appeared that defendant's mortgage was given to secure a valid debt, and no evidence was introduced to impeach the good faith of it. There was conflicting testimony as to whether, prior to the making of defendant's mortgage, the plaintiff told him that his own mortgage did not cover the horses, and as to whether the plaintiff, when he took his bill of sale, had actual notice of defendant's mortgage.

The first instruction asked by defendant was: "From the facts of the case, as they are shown by uncontroverted evidence, the jury must find that the plaintiff's mortgage was made for the purpose of defrauding creditors of the mortgagor, and therefore void as to such creditors, and void as to purchasers and mortgagees in good faith." The instruction was refused, and defendant excepted.

The second instruction requested was: "If the jury find from the evidence that the defendant, at the time of the commencement of this action, and at the time of the purchase of the horses by plaintiff from Sleator, and prior thereto, had a valid and subsisting mortgage upon said horses; that the same was executed in good faith, and not for the purpose of defrauding any creditor; that the same was unpaid; and that the plaintiff's mortgage was not executed in good faith, or was executed for the purpose of defrauding any creditor; and that at the time of the purchase of the horses by plaintiff, he, the plaintiff, had notice and knowledge of the existence of the defendant's mortgage; then the defendant is entitled to a verdict in his favor for the horses." The court gave this instruction, adding: "Yes, if the defendant's papers are all right, and the plaintiff all wrong, then this is so, and I so charge the jury;" to which the defendant only excepted.

The jury found a verdict for the plaintiff, upon which judgment was entered, and the defendant appealed.

Lloyd Barber, for appellant.

Charles M. Start, for respondent.

YOUNG. J.

The plaintiff's testimony as to the situation of the horses when his mortgage was made, was incompetent, being mere hearsay; but it was proved that Sleator, the mortgagor, resided on a farm at Rock Dell, in which town the plaintiff's mortgage was filed. No attempt was made to prove that the horses were not at Rock Dell when the mortgage was executed, and in the absence of any evidence as to the precise situation of the horses, it is to be presumed that, being chattels personal, they were, as the mortgage says they were, at the place of the owner's residence. Had the plaintiff's testimony not been received, or had the motion to strike it out been granted, the presumption from the proof of Sleator's residence, and from the recital in the mortgage, would have been abundantly sufficient to warrant, and indeed to require, a finding that the property was, at the date of the execution of the mortgage, situated in the town where the mortgage was filed. As the objectionable evidence only went to establish a fact which, in the absence of any evidence on the subject, the jury were bound to presume, the denial of the motion to strike it out could have worked no possible injury to the defendant, and is no ground for a reversal of the judgment.

The first instruction asked by the defendant was properly refused. A mortgage of chattels, coupled with an agreement that the mortgagor may retain possession of the mortgaged property, and sell or dispose of it as his own, without satisfaction of the mortgage debt, is of no effect as a security, and can only operate to hinder, delay and defraud the creditors of the mortgagor and subsequent purchasers and...