21 Colo. 414 | Colo. | 1895
delivered the opinion of the court.
We are of the opinion that the trust deed to Harding, in so far as it relates to the personal property embraced therein, constitutes a chattel mortgage. We are also of opinion that the authority therein reserved to the mortgagor to sell and dispose of a portion of the property included in the mortgage, with the power to devote the proceeds of such sale to its own use, renders the instrument inconsistent with its being a security, and that therefore in law it is void and fraudulent as to creditors of the mortgagor, and that the requirement that the mortgagor shall keep the number of the herd of cattle aud horses at not less than seven thousand does not affect this result. Gallagher v. Rosenfield, 47 Minn. 507.
The court of appeals, in the late case of Roberts v. Johnson, 5 Colo. App. 406, a case involving the construction of the sa.me trust deed, held this instrument, as to the personal property covered by it, a chattel mortgage, and void as- to
Such an instrument as this, however, may be good as between the parties, but void as to the creditors of the mortgagor. It is upon this theory that the plaintiff insists that as the court below found that he had taken possession before the levy of the writ of attachment, this possession was sufficient to warrant a recovery, at least until a superior title was established by the defendant.
The trial court, as we have said, made no finding of fact upon the validity of the indebtedness upon which the Gumaer suit was founded. Shall we examine the evidence for the purpose of determining this disputed question, or is plaintiff in a position to demand that we shall make this investigation? Proof of naked possession in some cases is all that a plaintiff in replevin need show. The possession being presumed to be rightful and some evidence of ownership, general or special, upon the proof thereof the plaintiff may rest, and call upon the defendant to show a better title. But where, as in the case at bar, the plaintiff sets out in full in the complaint his title, — the facts upon which his right of possession depends, — and the defendant denies the same and directly attacks the validity of his title, the rule is that the plaintiff must recover upon the strength of his own, and not upon the weakness of his adversary’s, title: Proof of possession in such a case is made only as a circumstance tending to show title, and the question of title, and not mere possession, must govern, and the burden of proof is upon the plaintiff. Wells on Replevin, sec. 111; Cobbey on Replevin, sec. 99, and cases cited.
Applying this rule to the facts of this case, the rights of the plaintiff to the possession of this property must depend upon the validity of this chattel mortgage. If it is void, his possession thereunder gives him no right to recover as
Meversed.
