12 Colo. 310 | Colo. | 1888
delivered the opinion of the court.
Under the pleadings and admissions on the trial the material issues to be tried were: Did Standering make a sale of the cattle to Horn, with a condition of defeasance for a valuable consideration, as alleged in his answer; and did Horn acquire rights thereunder which had not been divested at the time of the commencement of the action? The proof and introduction of the bill of sale dated April 11, 1884, given, by Standering to Horn as security for his giving the bond for costs, substantially sustained the first issue in favor of the defendant.. The plaintiff had pleaded nothing in avoidance of this bill of sale. The replication denied the giving of the bill; but it contained no averment of the payment of the costs referred to therein, nor of any other matter in discharge or avoidance thereof; nor did it contain any traverse or avoidance of any other material matter contained in the answer; so that, even if plaintiff might show such matters in evidence without pleading them, the bill of sale and the consideration therefor being proved, the burden
The bill of sale was in effect a chattel mortgage. Though not executed and recorded as required by statute, it was nevertheless a valid mortgage as between the parties; and as soon as Horn received it he had a right to take immediate possession of the cattle, and hold them as security against his liability on his bond. Jones, Chat. Mortg. § 1 et seq.; Landon v. Emmons, 97 Mass. 37.
Standering having neglected for an unreasonable time to pay the costs, so that Horn had to pay them to escape being pursued on his bond, the legal title to the cattle became vested in Horn, and he had a right to sell them, or to keep them to reimburse himself for all his necessary expenditures on account of the bond; and thereafter a suit in replevin by Standering for the recovery of the cattle could not be maintained. A mortgagor, after condition broken, while 1 he chattels remain in the hands of the mortgagee, may, under proper circumstances, maintain a bill in equity to redeem or a bill for an accounting after they are disposed of, and perhaps an action for damages when the conduct of the mortgagee haa been negligent or oppressive; but these actions proceed upon principles quite different from an action of replevin. Jones, Chat. Mortg. § 699.
It is contended that the bill of sale is void for uncertainty. Such an objection might be a very serious one if this were a suit by or against a stranger to the instrument. But there seems to have been no question at the trial about the identity of the cattle. They belonged to Standering, and were branded as specified in the bill of sale; and no rights of third parties were involved. Under such circumstances there can be no doubt that by taking possession of the cattle any defect in the description was cured, and that the instrument should be upheld. Id. § 178. It is not to be unnecessarily presumed, in the absence of proof or of conflicting rights, that the parties
In any view of the case under the pleadings and proofs, the court should not have directed a verdict in favor of the plaintiff below. The judgment of the district court is reversed and the cause remanded.
Reversed.
