163 N.W. 530 | N.D. | 1917
In this case the bank appeals from a judgment against it for the conversion of turn horses on which the plaintiff had a chattel mortgage. There was no motion for a new trial and no showing that the evidence was insufficient to sustain the verdict. The bank admitted the taking and sale of the horses, and claimed the right to do so under a bill of sale by the owner and an alleged assignment of a mortgage. It appears that on June 22, 1909, J. O. Filler .and Cora Filler made to the plaintiff two promissory notes, — one for $354 and one for $400, — and to secure the same they made to the plaintiff a mortgage on the horses in question, with another team of black horses and some crops. The mortgage was duly filed and was given for money loaned, and it has not been paid. The alleged assignment is on a blank printed form, and a paper about the size of a blank promissory note. It is as follows:
For value received, I hereby assign, transfer, and set over unto First State Bank, Mott, North Dakota, that certain chattel mortgage, dated on the 22d day of June a. d. 1909, together with the notes secured thereby, made by J. C. Filler and Cora B. Filler as mortgagor, to Bridget*12 A. Hart as mortgagee, which, has been filed in the office of the register of deeds of the county of Hettinger, State of North Dakota, on the 29th day of June a. d. 1909, being No. 3194 of the chattel mortgages-■of -said county.
In witness whereof, I have hereunto set my hand this 12th day of' August, A. D. 1911.
In presence of' Hart. J. J. B. G. Grest Orr Bridget A.
The promissory notes secured by the mortgage were not delivered to the bank. The plaintiff testified that she never agreed to make any such assignment and she never knowingly put her signature to it. That in May, 1911, she was in the bank and signed some papers giving the bank a lien for seed wheat. That she talked about the-security, the money, and seed lien. She did not read the papers. She thought they would be as they had stated. I talked with Orr,, the cashier and manager of the bank, he laid out the papers and showed us where to sign. He said, sign here, and she signed. ITecalled on Mrs. Biller to sign first and then Bridget Hart signed, and. then J. O. Biller signed. She says there were quite a good many papers. One was a copy of another. The plaintiff’s counsel vainly tried to show the conversations regarding the papers and the whole transaction, and it was objected to- and erroneously ruled out. To the question: Was there anything said about the assignment of a mortgage, and objection was made and the objection sustained. And so by the fault of the counsel for defendant the plaintiff was not permitted to show the matter as fully as she might have done.
In regard to the bill of sale the evidence is that it was without any-consideration and it was made for the purpose of keeping off creditors. Mr. Orr, the bank manager, was present and heard the testimony impeaching himself, and the assignment and the bill of sale, and, he did not attempt to- deny any of it. There was no denial. No testimony was offered to show that either the bill of sale or the assignment was made for any consideration, or to show any conversation, or negotiation regarding the alleged assignment, or the reason for such, an unusual thing as an assignment of a mortgage without the notes.
(1) The bill of sale was made without any consideration, and the bank was not a purchaser in good faith or for value.
(2) The alleged assignment of the mortgage is a mere nullity. The •signature was obtained by smoothness and deception of the bank manager.
(3) In taking and selling the horses the bank was a mere wrongdoer, ■ and subject to exemplary damages.
(4) The defendant pleads a former adjudication in a suit which was dismissed, but it is entirely clear the record fails to show any adjudication on the merits of this case.
When the defendant moved for a directed verdict, the court might well have directed a verdict in favor of the plaintiff. The judgment .is affirmed.
