BROWN V. VAN METER.
BROWN v. VAN METER. (Circuit Court of Appeals, Eighth Circuit.
CHATTEL MORTGAGEs-TITLE AND POSSESSION PLEVIN. ABSOLUTE BILL OF SALE-RE-
June 25, 1894.)
In an action for possession of personal property, by one alleging title and right to possession, defendants pleaded a bill of sale from plaintiff to them, alleging that it was au absolute conveyance, and produced evidence to sustain their allegations. Plalntiff admitted that he executed the instrument set forth, but gave evidence that it was a mortgage. Held, that such evidence did not change the legal effect of the instrument on the question at issue, under Mansf. Dig. Ark. § 4754,-in force in the Indian TerritorY,-which provides that, in the absence of stipulations to the contrary, the mortgagee of personal property shall have the legal title thereto, and the right of possession.
In Error to the United States Court in the Indian Territory.
The defendant in error, John Van Meter (hereafter called the plaintiff), brought an action for the possession of personal property against Lizzie Brown and Ben Brown (hereafter called the defendants) in the United States court In the Indian Territory, and obtained the judgment which this writ of error is brought to reverse. He alleged in his complaint, which was filed May 23, 1889, that he was the owner and entitled to the possession bf the property, and that the defendants unlawfully detalned it from him. The defendants answered that the defendant Lizzie Brown had pw'chased of the plaintiff, and he had conveyed to her by a bill of sale, a large portion of this property, in March, 1887. The plaintiff replied that the bill of sale was not made to convey the property, but was for the purpose of securing certaln rents that might become due from him to the defendant Lizzie Brown. On the trial there was evidence tending to prove that the bill of sale was an absolute conveyance of the property, and, on the other hand, that it was made to secure the rents, and not as the evidence of a sale.
C. L. Herbert, for plaintiff in error. S. O. Hinds, N. A. Gibson, W. B. Johnson, A. C. Cruce, and Lee Cruce, for defendant in error Before CALDWELL and SANBORN, Circuit Judges, and THAYER, District Judge. SANBORN, Circuit Judge, after stating the facts as aoove, de· livered the opinion of the court. Under the statutes of the state of Arkansas, which were in force in the Indian Territory (26 Stat. 95), the mortgagee in a chattel mortgage which contains no provisions to the contrary holds the title to, and the right of possession of, the mortgaged chattels, as against the mortgagor, until the mortgage debt is paid. Section 4754 of Mansfield's Digest of the Laws of Arkansas provides that, "in the absence of stipulations to the contrary, the mortgagee of personal property shall have the legal title thereto and the right of possession." Jones, Chat. Mortg. § 426. The court below charged the jury that if the instrument in writing, from the plaintiff to Lizzie Brown, was not executed for the purpose of conveying the title to the property therein de-
scribed, notwithstanding said instrument might have been intended as a mortgage, the jury would find for.tM plaintiff. The statement of, We case,and ,tl;J.e,statute we have quoreq, ,demonstrate the error 'of this charge. effort is' I1lade tosustairi it on the ground that the defendants could not hold the property in this action" tile. bill ;,sale, if it w,ai:!. in ,fact a .subsistiI)g mortgage, because, in their answer, they declared upon it as an absolute conveyance. ',Let us ,Theallegati(jns of title and right to the til: the the' plaintiff the right to pI:ove any claur;r to the property that gave him the right to ,possessIon. Miller v. Adamson, 45' Minn. 99.1 47 N. W. 452." The defendants pleadM' the plaintiff's qUi of sale to, tp;e defendanf Lizzie, and alleged'that it wal!! an absolute conveyance pf the property. On the trial they produced evidence to sustain, these allegations, 'and the plaintiff admitted that he executed the. instrument set forth in the answer. Now, that instrument was as compk>te a defense td this action, under the statutes of Arkansas, if it was a SUbsisting mortgage,as it was if it was an absolute conveyance. The evidence that it was:3, mortgage was not produced by the defendants, · ,by ·tlte plp,intiff. Tl;J.at, evidence did', not change, the legal effect of the instrument upon the question at issue,-the ryght, to the possession' of.th,.e property in question; and the defendantswete entitled to a 'peremptory instruction to that effect, just as theywol),ld have been, to an instruction that any prodUced by the plaintiff, such as that the bili of sale was a d-e dor a lease, 'or an;y other instrument whose legal effect gave :1$elJl 'tl;J.e:t:ighf(p,fpossession, would not defeat the right instruxnent had pleaded and proved vested in, them. It is undoubtedly true that if the plaintiff had proved, under proper pleadings, that the bill 4?fsale was a tq.ortgage, and that the debt that it. ,was given ,t<) 4ecure had been paid before the commencement of' the action, he might have A chattel mortgage is without force or effect after the mortgage debt is paid, and the title and right of possession is in the· mortgagor from the ' moment of payment. It is unnecessary to consider whether or not the pleadings were such as to warrant evidence of the payment of thl:! mortgage debt" for the case must be retried,and this question will undoubtedly not recur. The judgment below is, reversed, with costs, and the cause reDl,llnded, with ,directions to grant a new trial.
WlLLIAMS .v. WILLIAM.J.A.TIlENS LUMBER Co., Limited, et aI.
(CirCUit Court;, 'E;
b. tbulsiana..June 8, 1894.)
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TAX SALE-PRIMA FA0IE TITI,E.
A :purchaser at a tlJ,X sale..In g()Od faith. who has a title from the competent and proper officer, valid In form, and without patent defect, and who hUB been in possession for under the constitutional prov!si(ilus of the state of LouiSiana (artiCle 210), defeat, the claim of the original