6 Dakota 239 | Supreme Court Of The Territory Of Dakota | 1889
On the 6th day of January, A. I). 1887, Leopold Bros. &Uo., of Chicago, 111., commenced an action in the district court of Barnes county, in this territory, against one Rebecca Less, a resident of Talley City, in said county. A writ of attachment was immediately issued in said action, and was levied upon the stock of goods in question by John Simons, one of the defendants, in his official capacity as sheriff of said county.
It is not disputed that Rebecca Less was the general owner of said stock of goods.
On the 10th day of February, A. D. 1887, Leopold Bros. & Co. recovered judgment against Rebecca Less for the sum of $1,086.63; execution issued, and the goods previously attached were sold to satisfy the same.
. On the 30th day of December, A. D. 1886, seven days prior to the commencement of the action by Leopold Bros. & Co. against
The plaintiff, Reichert, resided at Philadelphia, Pa. His daughter, Mrs. Less, had been engaged for several years at Valley City in the business of retailing clothing and gents’ furnishing goods; her husband assisting her.
The plaintiff, claiming a special property in said stock of goods by virtue of his chattel mortgage, brought this action against the sheriff and the sureties upon his official bond, alleging failure of the sheriff to perform his duty, in that he did not pay, tender, or deposit the amount of the mortgage debt, as required by statute, before taking the property under the writ of attachment, and selling it under the execution.
The defense relied upon in this action was that the mortgage was made without consideration, and was fraudulent and void as to creditors.
All the issues of fact raised by the evidence were found by the jury in favor of the plaintiff, and judgment was accordingly given by the court.
Several questions were discussed by appellants’ counsel upon the argument, but an examination of the record discloses that only one material point was saved by proper exception in the court below.
The point saved, and the only one which we have considered, relates to the charge of the court to the jury upon the burden of proof. The court, among other things, instructed the jury as follows: “ The law never presumes fraud, and the burden of proof rests upon the defendants in this action to prove that the mortgage set forth in the complaint is fraudulent.”
The possession of the mortgaged goods was not delivered to the mortgagee, but remained in the mortgagor; and defendants’ counsel insist that, although the mortgage was properly executed and duly filed, it was at least prima facie void as to creditors of the mortgagor, and that the burden was upon the plaintiff to establish by affirmative evidence the good faith and validity of the transaction.
This rule, when established, does not repeal the statute regarding fraudulent conveyances, as would be the case in New York and Minnesota if the filing of the mortgage were held, in those states, equivalent to actual and continued change of possession. Our statute clearly contemplates that the mortgagor may retain possession of the mortgaged property until a breach in the conditions of the mortgage, and it is difficult to see how such an act of itself can be held fraudulent, or even evidence of fraud. When the law authorizes an act, to say such an act is fraudulent seems to me is to state an absurdity.
This view of the case appears to be in harmony with the spirit ■of our statutes, and is supported by high authority. Robinson v. Elliott, 22 Wall. 513; Frankhouser v. Ellett, 22 Kan. 127; Cotton v. Marsh, 3 Wis. 199 ; Jones, Chat. Mortg., § 329.
The judgment of the lower court is affirmed.