47 Iowa 443 | Iowa | 1877
“ Every sale made by a vendor of goods and chattels in his possession, or under his control, and every assignment of goods .and chattels, by way of mortgage, or security, or upon any condition whatever, unless the same be accompanied by. an imr
The plaintiff testified upon the trial as follows: “ These notes were given for an indebtedness due me from Till & Cohn, for goods sold to them, and there is a balance of four hundred and sixty-five dollars unpaid, and due on them. The mortgagors had no right at all to sell or dispose of any of the mortgaged property, and .1 so expressed it to them. They so understood and so expressed themselves to me. The mortgage was given with the understanding that I would furnish them - more stock and enable them to carry on their business, and they held the mortgaged pi'operty for me as my security.”
The fact that the co-partnership of Till & Cohn was justly indebted to the plaintiff in the sum named is not questioned. This in connection with the evidence that the mortgagors had no right to sell or dispose of any of the mortgaged property was, we think, a sufficient prima, facie showing that the mortgage was made in good faith and without any intent to defraud creditors or purchasers. The mortgage itself contained a provision prohibiting the sale of any part of the mortgaged property. It was then incumbent upon the defendants to overcome this pri/ina facie showing by proper evidence.
To do this, intervenors were introduced as witnesses and testified that at the time the mortgage was executed it was agreed between the parties thereto that Till & Cohn should proceed with their business, and sell the mortgaged goods in the ordinary course of trade. There was, therefore, a conflict in the evidence as to the authority to sell. The plaintiff testified there was no such authority given, and he was corroborated by the express provisions of the mortgage. The finding that there was no such authority is, therefore, not without support in the evidence,
Counsel for the appellants argue the case upon the theory that the mortgagors had power to sell the mortgaged property, and they cite the case of Tallon v. Ellison & Sons, 3 Neb., 63, which holds that under the statutes of that state a mortgage of goods and chattels, with possession and power of sale in the mortgagor, is void as against creditors and subsequent purchasers.
This mortgage having been made in Nebraska upon property in that state, is of course subject to the laws there in force, and the courts of other states, in a proper case made, will follow the interpretation given to the statutes of any state by the courts thereof. But, as we have seen there was no error in finding that there was no power of sale in the mortgagors, the rule announced in Tallon v. Ellison & Sons, supra, can have no application in this case.
Affirmed.