Nickol v. Clark

<p>Abstract of the Decision.</p> <p>1. Sales, § 179*—when title does not pass from mortgagee to creditor. Where the plaintiff sold and delivered an automobile, and the purchaser, being unable to pay a chattel mortgage given for the balance due on the machine, at its maturity, returned the machine with a bill of sale thereof by him to the plaintiff, who thereupon canceled the mortgage, which had been unrecorded, and the indebtedness, and turned hack the machine to such purchaser with a written agreement between them loaning the machine to the purchaser for eight months, when he was to pay either a certain amount and retain the machine or a certain other amount as damages and return it, held that the transaction at the maturity of the mortgage was a mere subterfuge and no title passed from such purchaser to the plaintiff.</p> <p>2. Execution, § 121*—when proceedings for trial of right of property may not he maintained. In proceedings for trial of the right of property in an automobile taken on execution upon a judgment against the party in whose possession it was at the time of levy, where it was shown such party held it under an agreement with the plaintiff to pay a certain amount at a certain time, subsequent to the levy and to retain the machine, or to return it to the plaintiff at that time and pay a certain other amount as damages, held that the plaintiff could not maintain such proceedings against the execution creditor and the officer making the levy.</p>