| Minn. | Dec 16, 1892
The defendant, as sheriff, by virtue of an execution issued out of the district court of Hennepin county in favor of Peter Foss, execution creditor, levied upon certain personal property of one Ellison. The plaintiff, claiming title under a chattel mortgage executed to him by Ellison, brought this action of replevin in the district court of Ramsey county to recover the possession of the property. The jury found for the defendant.
1. We are first to inquire whether the trial court erred in refusing a new trial because the verdict was not justified by the evidence.
An examination of the evidence fully satisfies us that the verdict is justified by the evidence in the case, which tends to show that the mortgage was given to plaintiff, who is the father-in-law of the mortgagor, judgment debtor, to shield the property from the attacks of creditors. Only a short time before Ellison’s debt to Foss became due he executed the mortgage in question to Hanson for $1,600, which there is evidence tending to show was largely in excess of any amount actually due plaintiff. This alone would be a badge of fraud, it not appearing to be for future advances. But upon the evidence of the witnesses the question was fairly for the jury to determine whether the mortgage was not made with the intention of defrauding or hindering the defendant in the collection of his debt. We have examined the evidence in the case as to the actual amount of Ellison’s indebtedness, and the purpose for which the mortgage was executed, and have no doubt that this question was properly for the jury.
2. An attorney who was employed to prepare the mortgage was permitted to testify, over the plaintiff’s objection, to a conversation which he heard at that time between plaintiff and Ellison in respect to the amount of the latter’s indebtedness to plaintiff. The evidence was properly received. It was clearly not privileged, because made in his hearing. It was not a communication made to him as an attorney, nor does it appear to have been the basis of any legal counsel or advice given by him, nor were the statements made for the purpose of obtaining his advice or legal opinion. It did not, therefore, come within the rule in respect to privileged communications. 1878 G. S. ch. 73, § 10; House v. House, 61 Mich. 69" court="Mich." date_filed="1886-04-22" href="https://app.midpage.ai/document/house-v-house-7932541?utm_source=webapp" opinion_id="7932541">61 Mich. 69, (27 N. W. Rep. 858;) Caldwell v. Davis, 10 Colo. 481" court="Colo." date_filed="1887-10-05" href="https://app.midpage.ai/document/caldwell-v-davis-3311638?utm_source=webapp" opinion_id="3311638">10 Colo. 481, (15 Pac. Rep. 696;) 1 Greenl. Ev. §§ 239, 240.
3. Foss recovered the judgment in question in the municipal court of the city of Minneapolis'. A-transcript was filed in the district court of Hennepin county, from which last court execution was thereupon issued, under which the levy in question here was made.
4. The exceptions to the charge cannot be sustained. The attention of the jury was properly called to the fact that the parties to the mortgage were related, and to their dealings and conduct, and it was proper to state .to the jury that preferences claimed by way of mortgage, under such circumstances, should be carefully scrutinized.
Plaintiff also excepted to the instructions as to the effect of including in a mortgage an excess over the amount actually due or advanced, but they were clearly correct, and related to an intentional false and fraudulent representation of the amount of the debt secured.
5. The verdict was sufficient in form to warrant the judgment authorized by 1878 G. S. ch. 66, § 272. The jury found for the defendant, and assessed the value of defendant’s special property or interest in the property levied on, which was the amount of the execution and costs. This was the proper assessment of value to make in such a case.
Order affirmed.
(Opinion published 53 N. W. Rep. S71.)