Fish v. McDonnell

44 N.W. 535, 42 Minn. 519, 1890 Minn. LEXIS 81

• Court: Supreme Court of Minnesota
• Decided: February 10, 1890
• Status: Published

Opinion

Gilfillan, C. J.

On the trial the mortgagor in the mortgage upon which plaintiff must rely for a recovery testified directly and positively that by the advice of the mortgagee, this plaintiff, he executed it to prevent his creditors enforcing their claims out of the property, and to compel them to wait until he could get around to pay them. This testimony was not' contradicted, nor its force in any way impaired. The plaintiff, who was a witness in his own behalf, was silent on the point. The jury would have been bound to find the fact as thus proved. Such being the motive, or one of the motives, for its execution, the mortgage, as against other creditors, was not helped by the fact that there was also a valuable consideration for it. It was void as to creditors, and as to defendant, who represented them, and the court rightly directed a verdict for defendant.

Order affirmed.