19 Mont. 104 | Mont. | 1897
The well established doctrine of practice under the former codes of this state was that on a motion for a non-suit everything the evidence tended to prove was assumed to be true on appeal to the supreme court. (Emerson v. Ditch Co., 18 Mont. 247, 44 Pac. 969.) To ascertain, therefore, whether there was a sale and delivery of the building, we must look into the evidence. The facts are as follows: On July 29, 1893, the Stock Growers’ National Bank of Miles City, Montana, became insolvent, and in the afternoon of that day closed its doors to business. As there were numerous persons who owed the bank considerable money, Mr. Middleton, a director in the bank, in the forenoon of July 29th, advised Batchelor, the cashier, that it was desirable to obtain security upon these various loans. Batchelor himself owed the bank a considerable sum, and in the forenoon, in accordance with Middleton’s prior suggestions, executed to the Stock Growers’ National Bank a bill of sale, reciting that in consideration of one dollar he sold and assigned unto the Stock Growers’ National Bank of Miles City the following described property, to-wit: “One one-story frame building situated in what is known as the ‘right of way’ in the town of Red Lodge, Park county, Montana, said building being occupied at present by H. J. Armstrong & Co. ’ ’ There were also included in the bill of sale a saddle horse in the possession of W. W. Alderson at Muddy, Mont., one Victor bicycle, and one set of bedroom furniture. The bill of sale was witnessed by Mr. Middleton. The bicycle and bedroom furniture were left by Batchelor in the bank, and subsequently passed into the hands of the receiver for the bank’s benefit. Batchelor was the only oflicer of the bank in town upon the day of the failure, and Mr. Middleton thinks he himself was probably the only director in town. Mr. Batchelor was advised by Mr. Middleton, who by profession was and is a lawyer. When the bill of sale was executed, Batchelor put it into the vault of the bank in the presence of Middleton. Batchelor notified" the
It seems to us quite clear that the tendency of this evidence was to prove a sale and delivery of the building to the bank, and a valid acceptance thereof by its officers. Batchelor, an officer and debtor of the bank, which was to close its doors in a few hours, in obedience to the request of the only then present director of the bank, to protect the institution executed a bill of sale of certain property including a building several hundred miles away, in the possession of a tenant under a written lease. The consideration for this transfer was Batche
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