Mullen v. Noonan

• Decision Date: 29 November 1890
• Citation: 44 Minn. 541,47 N.W. 164
• Parties: MULLEN v NOONAN ET AL.
• Court: Minnesota Supreme Court

44 Minn. 541

47 N.W. 164

MULLENvNOONAN ET AL.

Supreme Court of Minnesota.

Nov. 29, 1890.

(Syllabus by the Court.)

1. In an action of replevin, each party pleading in general terms that he has title to the property, and denying the title alleged by the other party, the defendant may avail himself of the defense that the conveyance under which the plaintiff claims title was fraudulent and void as to the defendant.

2. Case considered as showing prima facie that a mortgage of personal property in the apparent possession of the original owner was taken in good faith, notwithstanding a pretended prior sale of the same by him. Following Bank v. Ellis, 30 Minn. 270,15 N. W. Rep. 243.

Appeal from district court, Big Stone county; BROWN, Judge.

J. L. McDonald, for appellant.

Stephen A. Flaherty, for respondents.

DICKINSON, J.

This is an action for the recovery of a horse and colt, the plaintiff declaring his ownership and right of possession. The defendants by their answer, and the intervenor by his complaint, denied the plaintiff's title, and alleged that the intervenor, Andrew Noonan, owned the property, and he sought to recover the possession from the plaintiff, who had taken it from the defendants by the statutory proceedings in this action. The property formerly was owned by one Comer, from whom both parties claim title. The plaintiff, to sustain his claim of title, testified that he purchased this with other property from Comer, March 2, 1887, for the consideration of $375, which sum he credited Comer on an existing indebtedness of the latter to him. A bill of sale of the property was given by Comer to the plaintiff. The horses were then on the farm owned by plaintiff, but occupied by Comer and his wife. The horses were not taken away from the farm by the purchaser, and no change of possession was shown except that the plaintiff says that he “made them over” to his daughter, who was Comer's wife, on the same place; told her that the horses were his, and that “she could take care of them for her interest.” Thereupon the plaintiff rested the case. On the part of the defendants and the intervenor, proof was offered of a mortgage of this property by Comer to the First National Bank of Morris, on the 9th of July, 1887, filed for record two days later. Evidence was presented tending to show that the mortgage was taken by the bank in good faith. Some evidence was received, directed to showing a foreclosure sale of the mortgaged property, and a sale of the same by the purchaser to the intervenor, Andrew Noonan. Other evidence of the foreclosure offered by the defendants was excluded, and the court directed a verdict for the plaintiff, after which a new trial was ordered, because the court considered that error had been committed in excluding proof of the foreclosure. The plaintiff appealed from the order granting a new trial. The order should be affirmed. Under the issue made by the parties by their general allegations of title, the defendants and the intervenor denying the plaintiff's alleged title, (pleaded generally,) and asserting the title to be in the intervenor, the latter might rightfully avail himself in defense of the fact, or of the presumption of fact, if the case disclosed sufficient grounds for it, that the sale from Comer to the plaintiff was fraudulent and void as to the...