Nicholson v. Smith

• Decision Date: 04 January 1916
• Docket Number: No. 8793.,8793.
• Citation: 60 Ind.App. 385,110 N.E. 1007
• Parties: NICHOLSON v. SMITH.
• Court: Indiana Appellate Court

60 Ind.App. 385

110 N.E. 1007

NICHOLSON

v.SMITH.

No. 8793.

Appellate Court of Indiana, Division No. 1.

Jan. 4, 1916.

Appeal from Circuit Court, Pike County; John L. Bretz, Judge.

Action by William Nicholson against Rawleigh Smith. From a judgment for defendant, plaintiff appeals. Affirmed.

Frank E. Gilkison, of Shoals, for appellant. Harry R. Lewis and Samuel M. Emison, both of Vincennes, for appellee.

SHEA, J.

This was an action in replevin brought in the Knox circuit court by appellant, Nicholson, against appellee, and on a charge of venue taken to the Pike circuit court. The complaint was in the usual form of replevin, asking for possession of the boat Mary H, together with the engine and equipment. Appellee answered in three paragraphs; the first a general denial, the second averring, in substance, that appellee bought the boat from one James Hobbs under the following written agreement:

“Whereas, Wm. Nicholson is indebted to me in the sum of $200.00 interest thereon at 6% interest per annum from May 10, 1910, as shown by his promissory note of that date; and whereas, the said Nicholson has turned over to me a certain boat, which boat is named ‘Mary H’ as security for said debt; and whereas, the said Nicholson has not paid said debt and redeemed said boat, although the said debt is long past due; and whereas, the said Nicholson has authorized the undersigned to sell said boat, the proceeds thereof to be applied on said note and debt: Now, by this instrument, because of the reasons above set forth, and the authority vested, in me, I, the undersigned, sell and transfer to Rawleigh Smith the said boat ‘Mary H’ for the sum of $140.00, the receipt of which is hereby acknowledged.

In witness whereof, I have set my hand this 7th day of October, 1911. James Hobbs.”

That the boat was turned over to Hobbs by appellant to be his absolute property about May 22, 1911, to secure the note referred to in the agreement, with instruction to sell it and apply the proceeds on the note. That appellee bought the boat in good faith, for a valuable consideration, under these conditions. The third paragraph of answer is substantially the same as the second, except that it avers that the indebtedness was that of Sarah Hobbs, instead of James Hobbs, and that James Hobbs acted as her agent. Appellant filed a reply in general denial to the second and third paragraphs of answer. A trial of the issues by the court resulted in a finding and judgment for appellee; that he was the owner of the boat, engine and equipment described in the complaint and entitled to possession, together with costs. The only...