Bangs v. Friezen

32 N.W. 173, 36 Minn. 423, 1887 Minn. LEXIS 243

• Court: Supreme Court of Minnesota
• Decided: February 11, 1887
• Status: Published

Opinion

Vanderburgh, J.

The plaintiff claims under an alleged execution sale of a certain chattel mortgage covering the personal property in question. The defendant’s title, as shown by the evidence, which is uneontradicted, rests on a sale of the property to him by the mortgagor, and an agreement by the mortgagee for a transfer of the mortgage. This transaction, which was intended to vest the entire interest of the parties to the mortgage in the defendant, Friezen, was upon sufficient consideration, and was completed before the levy under which plaintiff claims. The goods being delivered to defendant, and the mortgage satisfied in fact by the mutual arrangement of the parties, no writing was necessary. Nothing further remained to be done, and it was not material that the language of the bill of sale and assignment was, “I agree to sell,” instead of, “I hereby sell,” etc. In such cases the form of the expression used is not decisive. The manifest intention of the parties must control. Kabley v. Worcester Gas-Light Co., 102 Mass. 392.

The reference in the defendant’s testimony to the fact that the property was in the possession of the sheriff when he bought, had no connection with the levy upon the chattel mortgage by the city marshal, under which plaintiff claims, as it is not pretended that the latter levied on the property described in the mortgage, or upon anything else than the mortgage itself. So far as the record shows, then, the justice was right in holding defendant’s title superior to that of plaintiff, independently of the question of the sufficiency of the levy made . on the mortgage filed with the town clerk to entitle the latter to claim possession of the property, — a question which seems not to have been considered by the court below.

Judgment reversed.