Donaldson v. Johnson

Lare abbe, J. This cause was tried before me at the last term of the Washington county circuit court. The principal ground of error is the permitting the declarations of one of the mortgagors, Bayliss, to be given in evidence to the jury, to show fraud in the execution of the chattel mortgage to Donaldson: I decided that these declarations should be received, because they were shown to have been made while the mortgagors remained in possession of the property, and upon the same day that the mortgage was executed. But I am now satisfied that my decision was wrong, and concur with my brethern that the judgment should be reversed. It appears pretty plainly that Bayliss made these declarations subsequent to the delivery of the mortgages (for there were several of them) to the town clerk to be filed ; and this filing our statute makes equivalent to an actual change of possession. If, then, there had been a change of the possession, would the statements of any one or all the mortgagors have been received to show fraud in the transaction? Certainly not. The authorities are nearly all the other way, and it is now too well settled to be questioned. The declarations of a former owner cannot be received to affect the title of a succeeding owner, where such declarations are made after the former [487] owner has parted with his interest. Hurd v. West, 7 Cow. 752; Sprague v. Kneeland, 12 Wend. 161; 14 Mass. 245. It was contended, however, by the counsel for the defendants in error, as the mortgagors remained in possession of the property, using and selling the same, and applying the proceeds to their own use, that their declarations, made under such circumstances, were properly admitted to show the character of the original transaction. Were this a case of first impressions, this position would, in my mind, admit of no question; but the authorities are now the other way. But this question aside, there is another difficulty apparent on the record, which is insuperable. The verdict does not warrant the judgment. By the pleadings, two issues were made. 1. The detention of the property, and 2, the title to it. There was a general verdict for the defendants, not in form a finding upon these issues, and though it was probably enough to have warranted the court in putting the verdict in proper form, yet as no application was made by the defendants for this purpose, but they chose to enter up their judgment on the verdict such as it was, it is now too late to correct it. Sprague v. Kneeland, 12 Wend. 161; Rogers v. Arnold, id. 30. For these reasons the judgment of the circuit court must be reversed, and the cause remanded for a new trial. Judgment reversed.