74 P. 195 | Utah | 1903
This action was brought to have decreed fraudulent, null, and void a certain chattel mortgage executed to the defendant bank by Shirley P. Ash, since deceased, on certain goods, wares, and merchandise including the stock in trade of the drugstore of the mortgagor, and fixtures, furniture, etc., and to have it adjudged that the bank has no preferred lien or claim over other creditors because of the mortgage. It was alleged in the complaint, substantially, that Shirley P. Ash, the mortgagor, died intestate in the city of Ogden on April 8, 1899, and that letters of administration upon the estate were issued to the defendant Hume on April 28, 1899. Shortly thereafter three claims, aggregating about $11,000, were presented to the administrator, and by him and the court approved and allowed. One of these claims — being about $1,000 was that of the Nelden-Judson Drug Company, for goods and wares sold by it to the deceased between November, 1898, and the date of his death; another, held by Ida C. Pehringer,
It still further appears from the complaint that by the terms of the mortgage the mortgagor was permitted to remain in possession of the mortgaged property, and to sell the stock in trade in the usual course of business as the agent of the mortgagee, and apply the proceeds of such sales, less expenses, in payment of the secured debt; that no such application of the proceeds of such sales was made by the mortgagor; that, instead of such application, such proceeds were used by the mortgagor for his: own benefit in payment of his private expenses, etc.; that he deposited such proceeds to his own credit in a bank, and treated them at all times as his private property, and expended the same as he saw fit; that in the conduct of the business he in no wise acted as the agent of the mortgagee, and at no time accounted to the mort
To the complaint the defendants interposed a demurrer on three grounds, as follows: (1) That the cause of action is barred by the statute of limitations; (2) that the complaint does not state facts sufficient to
The judgment must be reversed, with costs, and the cause remanded, with directions to the lower court to overrule the demurrer, and proceed according to law. It is so ordered.