Daily globe. [volume] (St. Paul, Minn.) 1878-1884, 1878-10-05
SUPREME COURT.
FU1I TEXT OF DECISION FILED.
2. Byrnes, appellant, as. K. B. Brazey, Re
apordent.

aDo7sdef,t
OPINION.
This ls the only question of law in the cases |
Does retaining possession by the mortgagor of |
the property to a chattel mortgage duly fled |
render the mortgage conclusively fraudulent |
and void, or does it merely raise such pre-
sumption Of fraudulent intent as imposes upon
the MORTGAGE the onus Of establishing actual
good faith and the absence of purpose to de-
fraud creditors? The old supreme court in
New York held that continued possession in
the mortgagor was conclusive evidence of
q fraudulent intent unless it was
made to appear that change of possession
was physically impossible, or at least extreme
ly difficult But such has not been generally
supposed to be the rule in this State, and al
though until TOW the question has not been di-
rectly raised here the court has made several
decisions which assume different rule, for it
would not have been necessary to make them
had the rule been as formerly held in New
York.
See Edison vs.. Newell IA Mimi, 22s.
Marsh vs.. Armstrong, 81 i'd. 81
Horton vs. Williams, 2l i'd, 1877
Mccarthy VS.. Grace, % i'd, 1872.
And that when the mortgage is duly filed re-
tanning possession by the mortgagor merely
raises presumption Of fraudulent intent,
which may be rebutted by the mortgagor seems
to follow necessarily from the provisions of
the statute. Sec. 1, oh. SO, Gen. Statute. has
no application to case where there is
continued change of possession. It provides
| only for case in which the mortgagor is in
| possession. 1t reads: Every mortgage on
personal property which is not accompanied
by an immediate delivery and followed by an
actual and continued change of possession of
the. things the mortgage shall be absolutely
| 9S Of fba Ia
and aA against purchasers and mortgages in
good faith and not for the purpose Of defraud-
| ing any creditor. and unless the mortgage or
copy thereof is nled hereinafter provided y
| Section makes the mortgage so filed full and
sufhclent notice to all parties of the existence
| and consideration thereof Had tie legisla-
ture intended to make retain the rule that
possession by the mortgagor should of itself
render the mortgage void, the provisions we
have quoted could have had no place in the
statute. and had it been the intention that
nothing should :, avoid the effect of
possession retained by the morteagor.
but proof that change of possession was i'm
possible or extremely difficult, we think the
mortgage would have been declared void, un-
less such impossibility or difficulty appears
instead of, unless it appears that such mort
gage was executed in good faith and not fol
the purpose OF detraudlng any creditor The
effect which the statute gives to want of con
tinuei change in the possession is to make the
mortgage o'1naa fucie fraudulent, but to per
nit the mortgage to sustain his mortgage by
proof IL good faith. The statute docs not re-
gard the want of change in the possession as
OF itself Unnecessarily working a fraud and the
court cannot so regard it.
Upon the evidence in the case we see M
reason to disturb the verdict. We're the evidence
i as u the Hlldreth mortgage out of the case
there would be barely occasion to question tn.
good faith of plaintiffs mortgage.
The evidence of bad faith in executing thu
former is strong, but it does not appear beyond
fair controversy on the evidence, that the tw.
mortgages were connected as parts of the sam,
scheme, or We're made with the same intent
nor even that plaintiff knew with what inten
the Hildreth mortgage was executed. Urde
affirmed. G1LF11IAN. O. Z