McFadden v. Ross
| Decision Date | 17 December 1890 |
| Docket Number | 14,472 |
| Citation | 26 N.E. 78,126 Ind. 341 |
| Parties | McFadden et al. v. Ross et al |
| Court | Indiana Supreme Court |
From the Shelby Circuit Court.
Judgment reversed, with costs, with instructions to sustain the motion for a new trial.
J. B McFadden, B. F. Love, H. C. Morrison and E. P. Ferris, for appellants.
K. M Hord, E. K. Adams, B. F. Davis and W. H. Martz, for appellees.
This is an action by the appellees against the appellants upon a replevin bond. Trial by the court, without the intervention of a jury, and, on proper request, the court found the facts and stated its conclusions of law thereon. Exceptions by the appellants to the conclusions of law. Appellants also filed a motion for a new trial, which was overruled, and exceptions reserved.
Errors are assigned, that the court erred in its conclusions of law and in overruling appellants' motion for a new trial. The court found the facts to be: That on the 26th day of March, 1879, the defendant McFadden, as administrator of the estate of Joseph Nichols, deceased, brought an action in replevin against the appellees for the recovery of certain goods therein specified, and executed the bond in suit as a bond in that case; that on the 3d day of March, 1882, this suit was instituted on said bond, the said replevin suit having been dismissed by the appellant, the plaintiff therein, on the 15th day of January, 1881, and judgment was rendered by the court that the value of the goods, being the same goods mentioned in the complaint in this action, was $ 401.90.
That on the 9th day of January, 1879, George D. Nichols executed his note for money borrowed before that time, and not for money loaned at the time to Joseph Nichols, for the sum of $ 550 payable three years after date, without relief from valuation or appraisement laws, and to secure said note executed a mortgage on a retail stock of liquors, saloon fixtures, and other property as described in the mortgage in evidence in this case. The property mentioned in the complaint being a part thereof, and left said note and mortgage with the appellant James B. McFadden, who had drawn up the same and directed the said McFadden to notify the said Joseph Nichols of the transaction; that said Joseph Nichols lived in Providence, R. I., and had no knowledge of such transaction until informed by said McFadden, when he accepted said note and mortgage, and directed said McFadden to have the mortgage recorded, which was accordingly done, and said mortgage recorded on the 17th day of January, 1879; the said McFadden was the agent of said Joseph Nichols until the death of Joseph, in protecting him in his interest in securing the debt, and he was the only person present to look after his interest in this behalf; that McFadden knew that George D. Nichols, the mortgagor, was in possession of said goods in the house where said George D. was retailing liquors, but never made any examination to ascertain whether the mortgaged goods were being disposed of or not; that George D., while in such possession, did sell some of the liquors, and other property mentioned in the mortgage, and closed out his business, but never applied any part of the proceeds thereof on the mortgage debt; that the said McFadden's office was near to the place of business of the said George D.; that a part of the goods mortgaged had been purchased by said George D. of the appellees shortly before the making of said mortgage and had not been paid for, but the price of said goods was the debt upon which appellees recovered their judgment and sold said goods; that said George D. Nichols had no other property subject to execution, except that mentioned in the mortgage, at the time he executed the same, and was indebted to the appellees and others for the larger part of said property; that by the terms of said mortgage it was stipulated that George D. Nichols should retain possession of said goods so mortgaged until the note became due, and if the note was not paid promptly at maturity, then said Joseph Nichols was to have the right to take and keep possession of said property wherever it might be found, without any process of law, and the same should become the absolute property of the said Joseph Nichols; and George D. Nichols expressly agreed not to remove the said property from the place where it then was without the consent of the said Joseph, nor to sell, assign or lease the same without his consent; to use the property well, and in case of default in any of the conditions, or should the property be levied upon by execution from any court, or come into the hands of any administrator, etc., to be sold, then the mortgagee was to have the right to take immediate and unconditional possession of the same for his own use forever; that, on the 11th day of February, 1879, the appellees recovered a judgment against George D....
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