Machette v. Wanless

1 Colo. 225 | Colo. | 1870

Hallett, C. J.

The declaration in this cause contains a count in replevin and a count in trover. To the count in replevin non detinet and property in Machette was pleaded, and to the count in trover the plea was not guilty. Issues were joined upon these pleas, and upon trial thereof the jury returned a verdict of guilty, and awarded five cents damages to the plaintiff below. It is impossible to say that these issues were determined by this verdict. Whether the jury found the defendants guilty of the detention charged in the first count, or the conversion charged in the second count, can only be conjectured, and the verdict is entirely silent as to the ownership of the property. In Patterson v. United States, 2 Wheat. 221, it is said: “Whether the jury find a general or a special verdict, it is their duty to decide the very point in issue, and although the court in which the cause is tried may give form to a general finding so as to make it harmonize with the issue, yet if it appears to the court, or the appellate court, that the finding is different from the issue, or is confined to part only of the matter in issue, no judgment can be rendered upon the verdict.”

It is hardly necessary to add, that according to this rule this judgment cannot stand.

• Other questions are presented which will probably arise upon another trial of the cause, and therefore it is necessary to refer to them briefly.

The mortgage from Goff to Wanless, although in terms defeasible upon payment of the $100 note, seems to have been intended as a security for all indebtedness then existing between the parties. The clause relating to past indebtedness must be brought within the terms of the defeasance in order to make it effectual, and this appears to have been the intention of the parties. This construction will give effect to every part of the instrument, while that urged by the appellant requires the provision respecting past indebtedness to be rejected, and the law will indulge the first construction rather than the last.

As to the description of the indebtedness, the case of Insurance Company v. Brown, 11 Mich. 266, is an authority.

In that case it was held that a mortgage conditioned for the payment of all'sums due and to become due was sufficiently certain, and the opinion of the court appears to be well sustained by other authorities.

If the appellee had been called upon to show that the notes given in evidence were covered by the mortgage, the court below would, doubtless, have required him to furnish such proof, since the mortgage does not contain a specific description of the indebtedness designed to be secured. But the appellant’s objection appears to have been directed against the mortgage, and it does not appear that any question was made in the court below respecting the connection or want of connection between the notes and mortgage. So, also, as to the objection that it does not appear that the instrument was recorded in the office of the county recorder. It does not appear to have been presented to the court below, and cannot be presented for the first time in this court.

In answer to the objection that the $100 noté was not offered by the appellee together with the chattel mortgage, it is sufficient to say, that a portion of the indebtedness secured by the mortgage was offered and received. Of course, a mortgage valid and effectual to secure the whole of the indebtedness described in it, is valid and effectual as to every portion of such indebtedness, and, while the mortgagee holds any portion of the indebtedness secured by the mortgage, he is entitled to proceed against the mortgaged property. Perhaps this statement would require some modification if applied to a case where a mortgagee of chattels has assigned a portion of the indebtedness secured in his mortgage,’ and his assignee has obtained possession of the mortgaged chattels. But the appellant does not occupy the position of an assignee of the $100 note. He claims to have taken it up on behalf of Goff, the maker, and is aggrieved that the court below would not permit him to show this fact. Furthermore, at the time the property was replevied, the note had not been paid, and, therefore, appellant was not then in possession of it, either as assignee or otherwise? Upon the evidence in this case, it certainly was sufficient for appellee to show, that he held a part of the indebtedness secured by the mortgage, and we do not see that appellant could defeat a recovery by showing that he did not hold all of the indebtedness. Although there was a count in trover in the declaration, there was no attempt to charge defendants below with more property than was obtained upon the writ of replevin, and, therefore, we may say, that the action was solely to recover possession of chattels. We have seen, that appellee was only required to show some indebtedness from Goff to him under the mortgage, in order to support his right to the possession of the mortgaged chattels, and, therefore, the refusal of the court to allow appellant to show that the $100 note had been paid was not erroneous.

As to the mortgage from Goff to appellant, it was not executed according to the statute, and, therefore, it was properly excluded. Hunt v. Bullock, 23 Ill. 320.

We do not perceive that any other questions presented in this record will necessarily arise upon another trial of the cause, and, therefore, this discussion will not be extended further.

The judgment of the district court is reversed and the cause remanded for a new trial.

Reversed.