44 Minn. 541 | Minn. | 1890
This is an action for the recovery of a horse and colt, the plaintiff declaring his ownership and right of possession. The defendants by their answer, and the intervenor by his complaint, denied the plaintiff’s title, and alleged that the intervenor, Andrew Noonan, owned the property, and he sought to recover the possession from the plaintiff, who had taken it from the defendants by the statutory proceedings in this action. The property formerly was owned by one Comer, from whom both parties claim title. The plaintiff, to-
The order should be affirmed. Under the issue made by the parties by their general allegations of title, the defendants and the. in-tervenor denying the plaintiff’s alleged title, (pleaded generally,) and asserting the title to be in the intervenor, the latter might rightfully avail himself in defence of the fact — or of the presumption of fact, if the ease disclosed sufficient grounds for it — that the sale from Comer to the plaintiff was fraudulent and void as to the defendants and intervenor, asserting rights under the subsequent mortgage from Comer to the bank. They might introduce evidence, if necessary, to show that the sale was fraudulent and void as to them. Tupper v. Thompson, 26 Minn. 385, (4 N. W. Rep. 621;) Furman v. Tenny, 28 Minn. 77, (9 N. W. Rep. 172;) Kenney v. Goergen, 36 Minn. 190, (31 N. W. Rep. 210;) Johnson v. Oswald, 38 Minn. 550, (38
It is true that, to enable a subsequent purchaser to avail himself of this statutory presumption, it must appear that he became a purchaser in good faith. While the evidence that the mortgagee (the .bank) occupied such a position was of a very general nature, it is deemed to have been sufficient to'show prima facie that the bank took the mortgage in good faith to secure a promissory note of Comer given at the same time for the sum of $350, payable at a specified future time, in renewal of á former indebtedness. This shows a valuable consideration. There was also testimony given, in comprehensive terms, that this was done in good faith and without fraudulent intent. If this was in fact such an ordinary business, transaction, unattended by circumstances indicative of fraud or of notice of the prior transfer, other and more direct proof of want of notice is not essential, the property being still in the possession, and apparently being still the property, of the former owner. This was so decided in Bank of Farmington v. Ellis, 30 Minn. 270, (15 N. W. Rep. 243.) Therefore the defendants and intervenor in this case should have been allowed to make proof of the foreclosure of the mortgage given by Comer, and the acquisition of title thereby. Some such proof was received. We need not stop to consider whether or not this was sufficient to show a foreclosure and sale. If it was, the court erred in directing a verdict for the plaintiff, instead of allowing the case to go to the jury; if it,was not, the court erred in rejecting the further proof offered, and for this reason the learned judge properly allowed a new trial. There was other evidence in the case, be
Order affirmed.