55 Neb. 583 | Neb. | 1898
Plaintiff Louis Rein replevied from the sheriff of Howard county 100 bushels of wheat and a cast-iron land
The rule in relation to the presumption arising from the filing for record of a mortgage is the same as that with reference to the filing of a deed by the grantor, and such recording of the latter has been held to afford prima facie, evidence of title in the grantee. (Bowman v. Griffith, 35 Neb. 361; Issitt v. Dewey, 47 Neb. 196; Gustin v. Michelson, 55 Neb. 22.) In Brown v. Westerfield, 47 Neb. 399, it was held that it was not essential to the validity of a deed that it should be delivered to the grantee personally, but that it was sufficient if the grantor delivered it to a third person, unconditionally, for the use of the grantee, the grantor reserving no control over the instrument. The filing of the mortgage for record, therefore, was sufficient to evidence, prima facie,
There was no evidence from which a fraudulent intent on the part of the mortgagor or mortgagee could be inferred. The debt secured was bona fide, and there was no relation between the parties from which a presumption against the fairness of the transaction could properly be inferred. The mortgagee received other security in the form of collaterals about the same time the mortgage was made, but his testimony showed in the trial that he had not therefrom collected a sufficient sum in the aggregate to satisfy the indebtedness due him. At any rate his right of present possession at the time of the trial was dependent upon the condition of affairs at the commencement of the action. (Kavanaugh v. Brodball, 40 Neb. 875; Brown v. Hogan, 49 Neb. 746.) “The question of fraudulent intent in all cases arising under the provisions of this chapter shall .be deemed a question of fact and not of law,” etc. (Compiled Statutes, ch. 32, sec. 20. See also the authorities cited on the proposition in Shaw v. Robinson, 50 Neb. 403.) As the record of the mortgage, prima facie, vested the mortgagee with an interest in the mortgaged property such as to entitle him to the possession thereof, and as there wa.s no evidence of a fraudulent intent in giving or accepting said mortgage, the judgment of the district court must be, and accordingly is, reversed.
Reversed and remanded.