Daily globe. [volume] (St. Paul, Minn.) 1878-1884, 1878-03-15

contained clause authorizing the moytpa,or
to remain in possession and make sales of the
property without satisfaction of the mortgage
debt Before any creditor took proceedings
hostile to the mortgage, the mortgagor part of
the mortgage debt having fallen due volun-
tarily in good faith delivered the prop
erty to the holder of the mortgage
for the purpose of being applied in payment
of the mortgage debt, and authorized him to
sell the property for that purpose. Held, that
under this delivery and authority the mortgage
creditor could hold the property against any
creditor subsequently proceeding against the
mortgagor.
OPINION.
Action in replevin. Collins, the owner of
tne property, consisting of a stock of goods
ana n1tures In store, being indebted to Wet
nose upon twenty-five promissory notes falling
uue successfully at intervals of one month
| amounting to thirteen hundred dollars, execut-
Gu mortgage upon it to Wetmore to secure
such Indebtedness. The mortgage contained the
usual clause authorizing the MORTGAGE upon
de1ault IN payment of the principal or interest
u .ne uep'' OF IN case of any attempt to
remove, dispose of or I'M ure the property. or if
the mortgagor should not take care of it. or if
| the mortgage should deem himself insecure
| to take possession of the property and sell the
same and apply the proceeds to payment of the
| debt; and 1t also contained the further clause
that as long as the conditions of the mortgage
should be fulfilled, the mortgagor should re-
main IN possession of the property and he
agreed to keep said property in good condi-
ton as 1t was therein, excepting the usual sale
OF goods in carrying on the business of the
mortgagor and he agreed to keep the stock ur
to the amount then on hand
The mortgage assigned this mortgage to the
| Oft dc -,
tarlly turned over the possession of the prop
erty to the plaintiff for the purpose of being
applied in payment of the indebtedness it was
given to secure and then authorized the plaintiff
to sell the property and pay its claim agains,
It, At this time no creditor of the mort gaoo,
had commenced any proceedings against him
but afterwards a firm of his creditors recovered
| judgment and issued execution against him t.
this defendant, sheriff of the county, who
hereunder levied on and took from the plain
till the property then remaining. Hence this
| action.
By reason of the clause in the mortgag,
authorizing the mortgagor to remain in pos
session and make sales of the property in tn
course of his business, without satisfaction o
the mortgage debt, it was void as to the cred
ltors of the mortgagors. Horton VS.. Williams
II Minn. 1877.
against any creditor who should tax
proceedings hostile to it, Will
it the only basis of tn
mortgages right, it did not prevent tn
mortgagor making any bona tide disposition o
the property to the mortgages subsequent t
the execution of the mortgage, and if such dis
position was made before any creditor of tn
mortgage proceeded against it, the right of tn
mortgage would rest on that disposition an,
not on the void mortgage.
The debtor in this case could, if acting il
good faith, have turned over the property t.
the creditor security for the debt, and au
thorize him to sell it and apply the proceeds t.
the debt if no previous mortgage had beer
made, and the fact that mortgage void as t.
creditors had been previously made did not dis
able the mortgagor in this respect. Under thi
delivery and authority to plaintiff it was en-
titled to hold the property.
Brown VS.. Platt, Bos. 1874
Judgment affirmed. G1LFILLAN, C. J.