The Helena independent. [volume] (Helena, Mont.) 1875-1943, 1891-02-01
AN IMPORTANT RULING.
Judge Fleischer's Decision on What
Constitutes Fraud on a
Mortgagor's Part.
Where Property is Sold With the
Consent of the
Mortgage.
It is Held That the Entire Transaction
Shows Evidence of Bad Faith
All Around.

Judge Fleischer yesterday handed down a
decision in the case of Pat Powers against
Charles M. J~efferis, which is of considerable
Importance to those interested in chattel
mortgages. 1t is as follows:
"This case is brought to recover certain
property levied upon under an execution in
the hands of the sheriff, and it is alleged
that the defendant. without the plaintiffs
consent, and wrongfully, took buggy from
the possession of the plaintiff. Defendant
in his answer denies the wrongful taking of
the said buggy, and alleges that 1t was
taken under an execution duly issued out of
a court of jurisdiction. The testimony in
troduced shows to me the following facts:
John Il. Burke gave to Patrick Power a
chattel mortgage to secure $1,3395, and
among other property described in said
mortgage was -four single puggies,' no
other description being given, except that
they were in a certain livery stable situated
one door from the corner of PAX avenue
and Edwards street, on the south side OF
Edwards street in the city of Helena, one.
Of these mentioned buggies having been
levied upon BY the sheriff under an execu-
lion. Defendant claimed that the descrIp-
ton of the property is not such as to
distinguish it from similar ar
ticles nor does it contain some
hint to direct the attention of such parties
who may read or examine the mortgage, to
any source of information beyond the words
of the parties to it. or such as to enable a
third person to identify the property. De
PENDANT also seeks to invalidate the mort
gage on account of fraud.
"The testimony shows that one-half in
terest of the so mortgaged property was
sold by the mortgagor to ID. II. Ashly for
$3.50, and with the consent of the mortga-
gee. The money realized on this sale was
not applied to the payment of the debt Sc
cured by this mortgage and was converted
wholly to the use of the mortgagor with
the consent of the MORTGAGE, except $34. a
small fraction thereof. The court would
have to find whether the description of the
property was sufficient notice to the world
to distinguish from other similar articles
introduced shows that the four single bug
gies were the buggies mortgaged and the
only four buggies in the stable described
belonging to the mortgagor. l find Herr
man on chattle mortgages says: Where a
mortgage is made of ten horses in the
mortgagor's possession, it is not void for
uncertainty; for the mortgage may show
that the horses taken by him were those
actually mortgaged.' Where the descrip-
ton of property IN q mortgage can be rem
dersd sufficiently definite, by evidence of
the facts rs to property mentioned, such
mortgage will convey whatever in fact an
swers to the description. l therefore hold
that the description of the property in the
above mentioned mortgage is a sufficient
description.
rs the mortgage void as to creditors IN
account of fraud? In 10 Pacific reporter,
page 726, Wilson vs.. Voigt, it is held that
retaining possession and the sale and dis
posal of proceeds of m~ortgaged chattels.by
the mortRagor with the consent of the
mortgages are acts wholly at variance with
the idea of security, and stamp the whole
transaction with a suspician of bad faith,