Machette v. Wanless

• Decision Date: 01 July 1870
• Citation: 1 Colo. 225
• Parties: MACHETTE v. WANLESS.
• Court: Colorado Supreme Court

1 Colo. 225

MACHETTE v. WANLESS.

Supreme Court of Colorado

July, 1870

Appeal from District Court, Arapahoe County.

AT the trial, George F. Wanless testifies: That he was agent for the plaintiff below, and authorized to make advances to one Goff who occupied plaintiff's farm; that he took a mortgage from Goff to the plaintiff on one-half of Goff's crop, to secure such advances; that, on going to the plaintiff's farm one day, he found the defendant below removing the grain; that he told defendant of the mortgage to plaintiff and claimed the grain and forbid the removal of it; that Machette, the defendant, answered, that he did not intend to give up the grain, and thereafter secreted it and refused to tell where it was; that the grain was found and replevied under the writ; that Machette stated that he was aware of plaintiff's mortgage; that Goff told witness, about a week before the grain was threshed, that he would not thresh for some weeks yet; that the grain was grown upon plaintiff's farm in the summer of 1867; that the advances made for plaintiff by witness were made at different times; that the last advance was $100; was made in June, 1867.

Cross-examination: Witness identified a note taken by him from Goff at the time the mortgage was executed, and stated that it was paid at maturity by Machette, the defendant. Witness also stated: 'I had advanced Goff money before that, horses, etc. I had made advances and so had my brother, and I took this mortgage to secure all of his indebtedness to my brother. I did not then know what or how much my brother had advances, or how much I had advanced in all, and therefore only specified particularly this note in the mortgage; Machette paid me this note on the day it was due, I think it was after this suit was brought.'

Plaintiff then offered a chattel mortgage from Goff to himself, dated July 6, A. D. 1867, and two notes from Goff to himself, one dated December 1, 1866, for $616, payable one day after date, another dated October 15, A. D. 1866, for $500, payable eight months after date. The consideration expressed in the mortgage was $500, and the defeasance was as follows:

'Provided, nevertheless, that if the said party of the first part, his heirs, executors or administrators, shall well and truly pay to the party of the second part, his executors, administrators and assigns, for the redemption of the above bargained goods and chattels, the just and full sum of $100, on or before the fifteenth day of September, A. D. 1867, with interest on the same, according to the tenor and effect of a certain promissory note, given by the said party of the first part to the said party of the second part, bearing even date with this deed, then these presents to be void, otherwise to remain in full force and virtue, and to secure all past indebtedness due and owing from the said first party to the said second party, said indebtedness to be paid on or before said fifteenth day of September, A. D. 1867.'

The defendant admitted the execution of the notes and mortgage, but objected generally to the introduction of the notes and to the mortgage on the ground that it was fraudulent and invalid for uncertainty. But the court allowed them to be read in evidence. The defendant below proved the execution of a mortgage from Goff to him, and also a note of $1,500, dated June 6, 1867, payable thirty days after date. The mortgage was of the same date, and for the undivided one-half of the crop then growing upon plaintiff's ranche. This instrument did not contain any provision as to the possession of the property by the mortgagor, nor was it acknowledged in the form prescribed by the statute, relating to chattel mortgages. Upon plaintiff's objection the note and mortgage were excluded. The defendant also offered the $100 note, mentioned in the mortgage from Goff to plaintiff, and upon plaintiff's objection the court refused to receive it. The defendant also offered a power of attorney from Goff to him, authorizing him to pay the $100 note and obtain a release of plaintiff's mortgage. On plaintiff's objection this was excluded also. The verdict of the jury was, they find the said defendant guilty, and assess the said plaintiff's damages on occasion of the premises at five cents.

Messrs. CHARLES & ELBERT and Mr. GEORGE W. PURKINS, for appellant.

Mr. ALFRED SAYRE and Mr. M. BENEDICT, for appellee.

HALLETT C. J.

The...