Wilson v. Jones

• Decision Date: 14 November 1904
• Citation: 20 Colo.App. 317,78 P. 622
• Parties: WILSON v. JONES.
• Court: Colorado Court of Appeals

78 P. 622

20 Colo.App. 317

WILSON v. JONES.

Court of Appeals of Colorado

November 14, 1904

Appeal from District Court, Arapahoe County.

Action by John M. Wilson against Robert J. Jones, sheriff. A judgment was rendered in favor of defendant, and plaintiff appeals. Reversed.

Philo B. Tolles and Thomas D. Cobbey, for appellant.

Rogers Cuthbert & Ellis, for appellee.

THOMSON P.J.

On the 2d day of February, 1900, the Lobach Hardware Company executed its chattel mortgage to John M. Wilson to secure the payment to him of its promissory note for $155, made the same day, and due three months from its date. The mortgage was duly recorded on the following day. On the 3d day of April 1900, the sheriff, Robert J. Jones, seized certain of the articles enumerated in the mortgage by virtue of a writ of execution issued on a judgment recovered on that day against the hardware company. Wilson brought this action to recover the property from the sheriff. In his complaint he alleged himself to be its owner, and entitled to its immediate possession, in virtue of his mortgage. The defendant answered that the mortgage contained a provision that until default made by the mortgagor in the performance of the conditions of the mortgage it should be lawful for it to retain the possession of the mortgaged goods and chattels and use and enjoy the same, and that the effect of this provision was to render the mortgage void as against creditors, of whom the execution plaintiff was one. This appeal is from a judgment rendered in the cause against the plaintiff.

The mortgage embraced a number of articles, each of which was specifically designated in the instrument. There were counters, show cases, tools used in the carrying on of the mortgagor's business, and certain stoves and heaters each of which was described by the name and number which it bore. The stoves and heaters were the only articles which had belonged to the company's stock in trade, and they were separated from the stock and placed in the back part of the storeroom. The mortgage further provided that in case of default in payment of the note according to its tenor, or in case of attachment or attempted sale or removal of any part of the property by the mortgagor without permission from the mortgagee, the latter should be entitled to its immediate and full possession. The contention for the defendant is that the provision of the mortgage authorizing the mortgagor, until default in the performance of its conditions to...