Morning appeal. [volume] (Carson City, Nev.) 1877-1906, 1897-11-25
ON PETITION FOR REHEAR,>c

Inc petition for rehearing contains
ihnch Ihat was fully considered bv the
| court on the hearing of the action. Conn.
sci mas evidently a misconception of tbe
scope OF the original opinion. hence very
i'tIe that Is urged in support of the an
pHcdllon Is pertinent. We held in etfact
'hat a mortgage that expressly stimulated
that the mOrtgagor his executors ad,,;,
io'i aIorS ana assigns, should remain and
continue IN the quiet and peaceahle DOS
session OF the mortgaged property and in
tne Tree and full use and eniovment of
lhe same until default, conferred unop
the mortgagor the right and authoritv to
sell ana dispose of the mOrtgagcd nron-
erty for his own benefit, and that snlb
mortgage Was therefore void ne, 90 Tbo
reasons for such holding are fully set ont
Ill the opinion
'ouilSel a les i'll his argument that
no matter nu stipulation may he CON
Iaiiled IN the .rortgage that the court can
h"' declare mortgage void of itself
t1ereln the court and counsel must diff
IeT- ordinarily under our statute . c,,os-
uon OF fraud is one of fact and NOT of Inv
""' 'here are eases where the question i
80 mixed that IL becomes difficult to dis
','iN"i9H pet"een law and fact. Such is
the case at bar We are Of theopjninn +bo+
lhe court Is warranted in holding a mort
gag" Npld per Sc as a matter of lav with
"'it regard II eNtrinSic facts. whara tbo
'"'S oi IFlii'i are atfirmatively shown il,
''c NtIPulauonS of the m0rtpare II il
NOT necessary to seek for facts outsido %
".' stipulation of the mortgage. The
,''l gage IS proof of the facts. and the
ldct being established by the mortgaoo
'iiat II operates to defraud creditors tho
't"S"ha9Ie conclusion is that it was in
tended to detraud creditors. and is thara-
lore void. Counsel cites McFaddon Al
iiilhlstrator vs.. Fritz et al. 90 Ind. 800 -.
oEerrullng the doctrine laid down in no
Nenport Vs FoUllls, IS Ind. 3S3 vot tro.
case IS o"trHiy different from the casa
ci'e"' ana approves Lockwood VS..
iiafnllg, 81 Ind. l29, as an authority
"hereih IL is held that cases NAV arise in
"hlch a mortgage should he dn,.larod
Noiu per Sc, without regard to exirinsic
i"ctS' MoDieY ct al. VS.. Let's. 81 Ind II
IL oNerruled III SO far AS If held that.
mortgage was void because it containoa
no stipulation that the mortgae0r shonId |
"np,S ''e proceeds arising from the sale !
"a 'iie 'hoftgaged stock TO the discharge !
u me mortgage debt. The same rulino
DIS lilade pE that court in New OF al ,,S !
>hl"rS. IA Ind. 4l2, cited in the oninion
'i thlS c"u't, and it was therein held that
"heh the mortgagor is permitted to re-
-alh possession ana sell the morto.ood
goods. 1t will De presumed that ba dooa
80 "hoer an agreement to account for
'"cli safes as the agent of the mortgagee
una 'he proceeds will be regarded as an
oiled TO the discharge of the mortpape
iebt whether they have been actualIr
'dio over or not, unless it affirmativeIv
ppearS 10 the contrary. We are of tho
'plhion that the mortgage in the case at
'ar aIhrinatlvely shows that the money
iioii 'he sale of the mortgaged
ooos should be appropriated bv the
iortgagor for his own benefit. without
esard 10 eXtrInsic facts, and that anv
moving OF private arrangement of
'mch the appellant had no notice or
IS not sufficient to Overcome
ne athrmative statement shown bv the
lipulatlonS i'll the mortgage. Counsel ;s
lualiy unfortunate in citing Jaffarv VS..
-reenbaur1, "a Iowa, 492. as analogous ,o
1t case a. ",. = appears in that case
'at the mortg"e" stipulated that the
iof'gagor should have the rirht !, re-
'in possession of the mortglged goods
io carry on the business in the usual re- I
III way FOR one year, paving cost and ey
7"Se OF running the business and keep
X the stock to what it was when tho
''r'gage was given. The mere state \
'e't OF this stipulation is sufficient to c
'Sti'iguish that case from the case Mt bar
)" ehe Supreme Court of Iowa in the ,
'oVe case in discussing the question as
"hether mortgage should be declared
''o on lts face, say: THAT MORTGAGE b