Morning appeal. [volume] (Carson City, Nev.) 1877-1906, 1897-07-23
oHINioN-BI MASSEY.

VI ~ If'N IN MASSEY, j.
On the 18th day of March, 1895. Archer
Baker " II" WAS at the time a retail grocer
IN failing circumstances. executed a mort
gage on his stock of merchandise 10 tine
respondent to secure the ptyment of
-'4n OF 81" 40, part of which sum was
used III thc discharge Of auu\i,tinp mort
gage upHn the same goods The Irh+ So
"ired nE the respondents nort.r.op Iy.ss
evidenced by promiSSory note, Of the
raine date, payable on or before the 18Th
gay OF March, 1897. The MORTGAGE ,.x
nEeSSIN stipulated lhat untiI default in
payment Of the said ~uin. the :1ortpagor
'ilS executors, administrations and a,>ion>
should "r"najn ami continue in the quiet
ahd petraahie possession of the said ooo,j,
and chattelS, and in the tlll and free use
amt enjoyment "f the Sane''
The mortgage was duly recorded. and
the statutory affidavit was annexed
thereto.
Al the time Of the execution Of the nota
ana mortgage, an action was pending in
<AVOr OF Y. j. McCOwan against said r -
ler, ana on the 3rd day of April. 1874;
said Baker for the sum of S4O5.24. with in
1eFest amt costs. On the 9th day of April.
1885, VIZ OF execution was issued therein
ana delivered to the appellant. Sheriff of
DrnSbE County. who levied upon the
goods covered by respondents mortgage
ana sold the same to satisfy said writ,
1t appears that the said McGowan and
>1Aerih had actual notice of respOndent,s
mortgage before levy and sale as aforn
sad, and that the goods were sold with
out regard to said mortgage and without
payment thereof
1t further appears that the mortgagor
ana mortgage had parOl agreement
entered into at the time of the execution
81 the mortgage whereby the mOrtga,-or
was to sell the goods in the course of bus-
IneSs and pay off the mortgage as he went
along, but 1t does not appear that the an
pellant had notice Of this agreement.
After the execution Of the m0rtoaon and
until the Sheriff took possession of the
property, Baker continued in possession
thereot and sold thereof about $4,000 in
value, no part of which sum was paid bv
sait Baker to the respondent. but all of
san sum was appropriated by him for
ais own use. The respondent testified
mat during this period he was sick. The
value of the goods at the date of the mort
gage was s1SO0.0O. and at the date of the
IeVE OF the writ, on the 9th day of April.
1896, Sl2OO0O
Inc Judgment of the District Court was
an favor of the respondent, and from that
Judgment and an order refusing a new
1rial, this appeal has been taken.
ihe important question herein pre-
sented for decision is the validity Of tho
mortgage.
Appellant contends that it is fraudu-
cent ana VOID as to the creditors of the
nlortgagOr; that it is rendered so bv the
stipulation therein permitting the mort
Eagor to retain possession of the mort
gagged property. authorizing him to sell
dhe same and appropriate the proceeds to
MS own use and benefit, and from the fur
thef Iact that he did make such appropri- |
alton. This question is for the first time
presented to the court since the amend |
nnent to the law relating to chattel mort |
cages was passed in 1885.
Prior to the End day of March, 1885. no |
growing crop, was valid against any other !
persons than the parties thereto, unless
the possession of the mortgaged property
was delivered to and retained by the