Godman v. Olson

165 N.W. 515, 38 N.D. 360, 1917 N.D. LEXIS 42

• Court: North Dakota Supreme Court
• Decided: July 13, 1917
• Status: Published

Opinions

Robinson, J.

This is an action to recover from the sheriff the value of two horses levied and sold under an execution against Richard Godman, the property of the plaintiff. The plaintiff recovered a verdict and judgment for $180. A motion for a new trial was made and denied, and defendant appeals.

The defense was that the horses were duly taken and sold under a writ of attachment and an execution issued from a justice court in an action by Emil Plath against Richard Godman, and that the bill of sale was in fraud of creditors and that the horses were in fact the property of Richard Godman, the defendant in the execution.

The bill of sale was in regular form. It was made to the plaintiff by Richard Godman. It was signed by two witnesses. It was dated, acknowledged, and filed in the office of the proper register of deeds on October 21, 1915. It was made in good faith to-secure an actual bona fide debt of about $1,500. It was made subject to a prior mortgage on the same property dated March 25, 1915, for $418.50, due October 1, 1915, and on this the plaintiff had to pay $446.55; he paid hired help $125 and some other debts.

Before the attachment was issued the plaintiff conversed with Emil Plath concerning the bill of sale, and told him it was made to secure $1,500 due and owing to him, and that on a sale of the property any surplus would be paid to the creditors of Richard Godman.

When Emil Plath obtained his judgment he had a legal right to pay the plaintiff and to step into his shoes, but it would have been a losing venture in case Richard Godman had claimed his exemptions.

As the jury found and as the trial judge found, it is clear that the bill of sale was in fact a mortgage, and it ivas made in good faith to secure an honest debt, and Emil Plath had full notice of the facts. He was not in any manner deceived, and he had a perfect legal right to treat the bill of sale in the same manner as if it were in the regular and usual form of a mortgage. The form did not in any manner deceive or mislead him. The form was adopted at the suggestion, and advice of a banker who drafted the paper to secure-the debt. Under the statute this bill of sale was in truth a mortgage, and as such it was duly made and filéd. Comp. Laws, §§ 6725, 6727, 6729.

This is no case for hairsplitting and it really involves no question of law or of fact. Even if it were not free from doubt, the court should hesitate to reverse the judgment of the trial court and a jury of twelve men, and to award a new trial on a matter of $180. There should be an end to petty litigation.

Judgment affirmed.