Lutz v. Kinney
| Decision Date | 23 November 1897 |
| Docket Number | 1,492. |
| Parties | LUTZ v. KINNEY, Sheriff. |
| Court | Nevada Supreme Court |
On rehearing. Denied.
For former opinion, see 49 P. 453.
The petition for rehearing contains much that was fully considered by the court on the hearing of the action. Counsel has evidently a misconception of the scope of the original opinion; hence very little that is urged in support of the application is pertinent. We held, in effect, that a mortgage that expressly stipulated that the mortgagor, his executors administrators, and assigns, should remain and continue in the quiet and peaceable possession of the mortgaged property and in the free and full use and enjoyment of the same, until default, conferred upon the mortgagor the right and authority to sell and dispose of the mortgaged property for his own benefit, and that such mortgage was therefore void per se. The reasons for such holding are fully set out in the opinion. Counsel assumes in his argument that, no matter what stipulation may be contained in the mortgage, the court cannot declare a mortgage void of itself. Herein the court and counsel must differ. Ordinarily, under our statute, a question of fraud is one of fact, and not of law, but there are cases where the question is so mixed that it becomes difficult to distinguish between law and fact. Such is the case at bar. We are of the opinion that the court is warranted in holding a mortgage void per se, as a matter of law, without regard to extrinsic facts, where the fact of fraud is affirmatively shown in the stipulations of the mortgage. It is not necessary to seek for facts outside of the stipulation of the mortgage. The mortgage is proof of the facts, and, the fact being established by the mortgage that it operates to defraud creditors, the reasonable conclusion is that it was intended to defraud creditors, and is therefore void. Counsel cites McFadden v. Fritz, 90 Ind. 590, as overruling the doctrine laid down in Davenport v. Foulke, 68 Ind. 382; yet that case is entirely different from the case last cited, and approves Lockwood v. Harding, 79 Ind. 129, as an authority, wherein it is held that cases may arise in which a mortgage should be declared void per se, without regard to extrinsic facts. Mobley v. Letts, 61 Ind. 11, is overruled in so far as it held that a mortgage was void because it contained no stipulation that the mortgagor should apply the proceeds arising from the sale...
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