| Or. | Dec 15, 1877
From the foregoing statement of tbis ease, several questions are presented for tbe consideration of tbis court.
1. Was it competent for tbe plaintiff to prove tbat tbe paper purporting to be a bill of sale from Nicholls to Lope was intended to be a mortgage ?.
Tbe plaintiff bad offered evidence tending to show tbat Nicbolls at tbe time of his death was tbe owner of tbe property in question. To rebut tbis and show tbat Lope was tbe owner, Lope offered tbis bill of sale. Tbis would be sufficient to show tbat Nicbolls bad sold tbe property to Lope. Now tbe question is, could tbis bill be impeached ? It could be by the party who signed it, Nicholls, by showing tbat no delivery bad ever been made under it, and tbat it bad been abandoned, and as to whether or not Nicbolls could have shown it to be a mortgage we are not called on to decide, for tbe reason that bis administrator being in this case tbe trustee of bis creditors (it being found by tbe jury tbat tbe estate owed five or six hundred dollars), occupied tbe same position towards this property as these creditors, and could show tbat tbis sale was fraudulent as to creditors. Tbis bill of sale was only evidence of tbe sale, and not conclusive;'for in the sale of personal property a bill of sale does not operate to pass tbe title without a delivery (Civ. Code, 264), and any evidence which tends to show tbat tbe sale was a fraud or on a condition, is as competent at law as in equity. Sales of personal property are liable to be inquired into in any court. It is objected tbat to show tbis to be a mortgage would contradict tbe writing and add to tbe contract; but it is a well settled rule tbat a deed absolute on its face can be shown to be a mortgage; tbis doctrine was held by this case in Smith v. Simpson (case not reported). Tbat was a case in equity, and in tbe case of deeds to land a resort to equity is necessary, for tbe deed itself is conclusive evidence of tbe legal title, but not so as to personal property, and courts of law have frequently ex
2. It is insisted there was no tender. But we think the offer in writing proved by plaintiff not being accepted by defendant was a sufficient tender, under section 842 of the code, and that, though such tender did not discharge the debt, it did extinguish the lien. (8 Johns. 96" court="N.Y. Sup. Ct." date_filed="1811-05-15" href="https://app.midpage.ai/document/brown-v-bement--strong-5472821?utm_source=webapp" opinion_id="5472821">8 John. 96; 2 Cain, 213; 3 Parsons on Contr. 274.) And we think he might make this tender without any order from the county court, for it made no difference with the defendant whether such order had been made, or whether this money tendered him was the property of the estate or of the plaintiff.
3. It is claimed as error that the court allowed evidence of the common reputation as to the ownership of this property to go to the jury to prove that Nicholls was the owner. This question was decided in the ease of Wilson v. Maddock, 5 Or. 480 when it was held that such evidence was competent under subdivision 12 of section 766 of the civil code, and we refer to that case as decisive of this question in this case.
4. It is claimed as error that the court allowed the plaintiff to prove declarations of Nicholls concerning his ownership of the property made while in possession of the property. We think that it is always competent to prove that a person is in possession of property and that he claims it. If a man says, this is my horse, when he is in possession of the property, such declaration may be proved to show that he claims it, as well as exercising control over' the property may be shown to prove the same-thing; the act and the language go together to explain one another. (Weinrich et al v. Porte, 47 Mo. 293" court="Mo." date_filed="1871-01-15" href="https://app.midpage.ai/document/lew-weinrich--co-v-porter-8003102?utm_source=webapp" opinion_id="8003102">47 Mo. 293.)
The foregoing are the only important questions presented; and we think there was no error, and the judgment of the circuit court will be affirmed.