107 P. 902 | Mont. | 1910
delivered the opinion of the court.
In 1896 J. B. Reynolds commenced this action against John Fitzpatrick and John Conly, respectively sheriff and deputy sheriff of Deer Lodge county, to recover damages for the' conversion of personal property. The complaint is stated in two separate counts. Issues were joined, and upon the first trial the district court sustained a motion for nonsuit and entered judgment dismissing the action. Upon appeal to this court the-judgment was reversed. (Reynolds v. Fitzpatrick, 23 Mont. 52, 57 Pac. 452.) Upon a second trial the plaintiff prevailed; but. on appeal that judgment was reversed for errors committed on the trial. (Reynolds v. Fitzpatrick, 28 Mont. 170, 72 Pac. 510.) Reynolds was the original owner of the goods in controversy. He sold them to Clark & Maddux and took from the purchasers a chattel mortgage to secure the balance due on the purchase price. Later Hall succeeded to the interest of Clark & Maddux, and, by agreement of all the parties, was substituted as the
The last judgment was rendered and entered on October 12, 1906. The notice of appeal was not given until August 3, 1909. Section 7099, Revised Codes, provides that an appeal from a final judgment may be taken within one year after the entry of the judgment. Since the attempted appeal was not taken until nearly three years after the entry of the judgment, the appeal from the judgment must be dismissed. (Ramsey v. Burns, 24 Mont. 234, 61 Pac. 130.) But all questions sought to be r.aised are presented upon the appeal from the order denying a new trial; and upon that appeal the appellants urge, (1) that there is a fatal variance between the pleading and proof; and (2) that the evidence is not sufficient to sustain the verdict.
1. It is contended that the pleadings count upon the written chattel mortgage, while the evidence discloses that the plaintiff is relying upon the verbal mortgage. In the first count of the complaint the plaintiff did rely for recovery upon the written mortgage executed and delivered by Clark & Maddux to him. That mortgage was held to be invalid upon the first appeal. Upon the last trial the plaintiff relied upon the second count of
The general allegation in the complaint, then, was sufficient to admit proof that plaintiff asserted a right to the property at the time of the conversion, by virtue of the verbal mortgage from Hall to him, and there was not any variance.
It thus appears that, before Collins purchased from Hall, he had some knowledge that Reynolds claimed an interest in the property by virtue of a chattel mortgage; and we think it was for the jury to say whether, from the information he received, Collins was apprised of the claim asserted by Reynolds, or received such notice as would lead an honest man, exercising ordinary prudence, to make further inquiry. The rules governing a case of this character are stated in 2 Cobbey on Chattel Mortgages, section 608, as follows: “When a purchaser has knowledge of any fact sufficient to put him on inquiry as to the existence of some right or title in conflict with that he is about to purchase, he is presumed to have made the inquiry, and ascertained the extent of such prior right or to have been guilty to a degree of negligence equally fatal to his claim.to be considered as a bona fide purchaser. * * * Notice to a purchaser of property of the existence of liens or encumbrances thereon is sufficient, in the absence of explanation, to charge him with notice of any and all liens or encumbrances which an inquiry would have disclosed. It is not necessary, in such a case, to show actual notice of the particular instrument creating a lien, to deprive him of the character of a bona fide purchaser.” (Reed v. Gannon, 50 N. Y. 345.)
Our conclusion is that the evidence was sufficient to go to the jury. The general verdict in plaintiff’s favor is conclusive against the defendants. The cause appears to have been fully and fairly submitted to the jury in the instructions given.
We do not find any error in the record. For the reason that the appeal from the judgment was not taken within the time limited by law, that appeal is dismissed, and the order refusing defendants a new trial is affirmed.
Affirmed.