Pabst Brewing Co. v. Butchart

• Decision Date: 15 January 1897
• Citation: 67 Minn. 191,69 N.W. 809
• Parties: PABST BREWING CO. v BUTCHART, SHERIFF.
• Court: Minnesota Supreme Court

67 Minn. 191

69 N.W. 809

PABST BREWING CO.vBUTCHART, SHERIFF.

Supreme Court of Minnesota.

Jan. 15, 1897.

(Syllabus by the Court.)

A chattel mortgage on a retail stock of goods provided that the mortgagor should sell the goods in the regular course of business, and apply the proceeds in keeping up the stock and defraying the expenses of running the business, and that all of the balance of the proceeds should be paid to the mortgagee, to be applied on the mortgage indebtedness. Held, the mortgage was, on its face, fraudulent and void as to the creditors of the mortgagor.

Appeal from district court, St. Louis county; S. H. Moer, Judge.

Action by the Pabst Brewing Company against W. W. Butchart, sheriff of St. Louis county. From an order dismissing the action and denying a new trial, plaintiff appeals. Affirmed.

McGindley & Whiteley, for appellant.

Wilson & Wray, for respondent.

CANTY, J.

Under an execution issued on a judgment against one Wagner, defendant, as sheriff of St. Louis county, levied on certain liquors, the property of Wagner. Plaintiff brought replevin, claiming the property under a chattel mortgage, made and delivered to it by Wagner, and filed of record prior to such levy. On the trial, the court held plaintiff's chattel mortgage void on its face as to the creditors of Wagner, and dismissed the action. Plaintiff appeals from an order denying its motion for a new trial.

The only question raised on this appeal is whether or not, as to the creditors of Wagner, the chattel mortgage is void on its face; and we are of the opinion that it is. It is the same chattel mortgage considered in the case of Pierce v. Wagner (Minn.) 66 N. W. 977; Id., 67 N. W. 537. But in that case the question here presented was not decided, as there was oral evidence tending to prove, as the court below decided, that the mortgage was, as to creditors, void in fact, and the decision was affirmed. The mortgage recites that it covers a stock of liquors and cigars, “being used by the party of the first part in carrying on and conducting a saloon.” It further recites that the stock which it so covers is of the value of $1,500, and it provides that said stock shall, until the mortgage debt is paid, be kept up to that value by purchases from time to time by the mortgagor; that the proceeds of sales in the business shall be used to keep up the stock; that the mortgage shall also be a lien on the new stock so purchased; that the remainder of the proceeds of said sales shall be used in defraying all necessary expenses of carrying on and conducting...