Stevens v. McMillan

• Decision Date: 12 December 1887
• Citation: 37 Minn. 509,35 N.W. 372
• Parties: STEVENS AND ANOTHER v MCMILLAN.
• Court: Minnesota Supreme Court

37 Minn. 509

35 N.W. 372

STEVENS AND ANOTHERvMCMILLAN.

Supreme Court of Minnesota.

December 12, 1887.

(Syllabus by the Court.)

In an action by a mortgagee of personal property to recover the same, an answer denying the plaintiff's alleged right, and setting up title in the defendant, held properly stricken out as sham; it appearing by the defendant's own showing that such defense was based upon the facts that the mortgage was made to avoid the claims of creditors of the mortgagor, and that the defendant thereafter purchased the property from the mortgagor with notice of the facts.

An answer containing a general denial may be stricken out as sham.

In an action in the nature of replevin, the plaintiff may waive the right to have included in the judgment for the recovery of the property the usual alternative provision for the recovery of its value.

Alleged errors in the clerk's taxation of costs will not be reviewed here, where no relief has been sought in the court below.

Appeal from district court, Wilkin county; BROWN, Judge.

Lyman B. Everdell, for Stevens and another, respondents.

Hartshorn & Coppernoll, for McMillan, appellant.

DICKINSON, J.

This action is for the recovery of personal property; the complaint alleging generally the plaintiffs' ownership and right of possession. This is denied by the answer, the defendant further alleging title in herself. Upon these pleadings, and upon affidavits presented upon a motion to strike out the answer as sham, the same was stricken out as irrelevant, and judgment was ordered for the plaintiffs. From the affidavits presented on the part of the plaintiffs in support of the motion, it appeared that their asserted rights in the property were based upon a chattel mortgage executed to them by the former owners of it, as security for money loaned. By the opposing affidavits on the part of the defendant it was averred that she purchased the property from the mortgagors subsequent to the mortgage, and with actual notice thereof; but that she was informed by the person from whom she purchased, one of the mortgagors, that the mortgage was given without consideration, and for the purpose of protecting the property from the claims of creditors of the mortgagors, and that it would not be enforced contrary to their wishes; that she purchased believing such representations; and that she expected upon the trial to establish the truth of these representations as to the fraudulent character of the mortgage. The real nature of the defense was thus disclosed by the defendant, in resisting this motion; and, for the purposes of the motion, it may be considered that the facts upon which ...