Morning appeal. [volume] (Carson City, Nev.) 1877-1906, 1897-07-23
Statutes of Nevada, 1869, %. 81.


evidence of fraud in law; that in such a
case the courts will not stop to inquire
| "hether there is actual fraud or not; that
! the law Imputes fraud under such condi
tl>lS, An' the statute does not permit this
+ conclusive proof to be overcome by evil
| d"nce OF an honest purpose.
Wilson vs.. Hill, IL Nevada. 4O7.
by an Act of the Legislature, the above
statute was so amended that a mortgage
| upon all kinds of personal property was
made valid against all persons, without
the possession of the mortgaged property
oeihg delivered to and retained by the
mortgage by attaching the certain affi-
davlt OF the parties thereto and duly re
cording the same.
Statutes of Nevada, 1885. %. 50.
Inc statute was again amended. but the
amendments in no manner affect the
above provisions.
Statutes of Nevada. 1887. u. Sc.
The amended Acts of 1855 and 1887
ABOVE clteh, changet the rule announced
| IN Wilson vs. Hill, supra, and since then
the fact that the mortgag0r retains and
continues in possession of the Dronertv,
and IS so permitted by the express stipu
Iation OF the mortgage, does not render
the mortgage void per So, where the CON
dItlons OF the statute have been complied
with.
Counsel for respondent contends that
the amendments above cited have 90
changed that rule, that under Section p.
OF the same Act, the question of fraud is
one OF fact and not of law: in other
words, that the courts have no ripht to de-
ciare mortgage void, per SO, when the
same mas annexed thereto the affidavit
required and has been duly recorded.
large number OF cases have been cited for
and against this contention by respective
counsel, but in no one of the cases citnd
mas heeh found nortg: G with like stip-
uIaHon as Is contained in the MORTGAGE
herein.
a number of decisions by the Supreme
court Of Indiana, under statutes similar
10 ours. are relied on by the respondent
to support his contention. but if will no
noticed that in all the cases cited, if an
p'ared that the mortgage contained either
IN express stipulation That the mortgapor
should retain the possession Of the Dron-
eF;T, the sameand apply the proceeds
ARISING from such sale to the discharge Of
'he mortgage debt, or i'll the absence of
Sn"h stipulation i'll the mortgage. such
agreement was shown olj,,ndc.
fletcher ct al vs.. Martin ct al. 1875 Ind.
%. and cases therein cited.
Fisher ct al VS.. Syfers ct al, 100 Ind.
OH
Muncie Nat. Bank ct al vs.. Brown I1o
Ind. IA.
lnat court in the case NJ, rt nI rs
'S1"to'", III Ind. III, discussing the same
question, for which respondent contends
say that the question Of fraudulent in
tept j. question of fact, and not Of Law,
therefore until the contrary appears if
Will he presumed that InOrtgauor who
Is permitted to retain possession of and
sell the mortgaged chattels does so r1,der
an agreement to account as the agent of
the mortgage. and the proceeds will he
regarded as applied to the liuuidati,,, or
mortgage debt, whether they have bean
actually paid over or not. IF how
ever II af1rnatlNeiy appears that there
was no agreement to account. and the
nortgagor is permitted, eithel. by an nx-
press or implied agreement withthe mort
gagee' to continue III possession, with tba |
iiSht 20 Se!i the property, ana appropriate |
the proceeds to MS own use, the transac-
ton Will be regarded As a fraud rnon crod-
itOrS and void"
New ct al. VS.. Sailors, ia Ind. 4l2
Southard vs.. Benner, y \. Y,424
NOt Ii h St3nGino h.,
ui'ieiile court or Indiana in many re- |
2poo'S support tlls contention of respon- |
oeht' Vet that Court comedies that eases |
may ARISE wherein mortgage should he |
declared void, on it's face. without ro,,ard
to extrinsic facts.
Lockwood ct al. VS.. Harding, ~ Ind. l33.
Inc decision of that Court i'm the case of
Davenport ct al. VS.. Foulke, furnishes tho
example of the rule laid down in Joo1-
wood ct al. VS.. Harding, suDra, and is a
case analogous to the case at bar. The
court there holds that where if is nro-
Nloed III chattel mortgage that the mort
gagor shall retain possession of the mort
gagged property and use and eDjou tho
same until default he made in the nav
iliehl OF the mortgage debt where if is an
pafent from the nature of the propertv
mat the only reasonable use the mort
g 'S"r can make of it viii! be to expose it
Tor sale and sell it, thus impliedly author
izIng hlm to apply the proceeds to his
own It's. -'-;' 'rortgage is void
DaNenro. .'.Ts. Foulke. IS Ind. 3s2
Mobley VS.. Le,tS, 81 Ind. II.
Nocrhis VS.. LangSdorr - 40. 451,
Paxton VS.. Smith, % y. W. 500.
Roberts VS.. johnson, 80 Pac. 596.
Herman on Chattel Morlga Sec. 1Ol.
Jones on Chattel Mortgages, Sec. 42o.
Applying the rule laid down in D4pe,,
port Us. Foutke, supra, to the case at bar.
we must hold the mortgage made bv Ra-
Aer to the respondent void. 1t expressly