Whitaker v. Sigler

Rothrock, J. I. Matthew Bunbury was a resident of Waterloo, Iowa, and with a view to a change of residence and busi [420] ness, he, with his minor son, went to Corning, Adams county, with the property in question, to engage in the livery business. In about three weeks after his arrival at Corning he died, and the son telegraphed to Edward Bunbury, brother of' the deceased, at Niles, Michigan, who went to Corning, took possession • of the property in controversy and sold it to defendant, one Wagoner acting for defendant in the purchase. j. evidence: obfecHonto. The plaintiff was not examined as a witness. The defendant offered in evidence the deposition of Edward Bunbury, through whom he obtained title to the property in controversy. Plaintiff objected to the deposition as “incompetent, immaterial and irrelevant.” This general objection was overruled, and the deposition was introduced in evidence, to which plaintiff excepted. The deposition was inadmissible in evidence only so far as the facts therein contained consisted of personal transactions or communications between the witness and Matthew Bun-bury, deceased. ' Code, Sec. 3639. . In all other respects it was competent evidence. The objection being general, the action of the court in overruling the same was not erroneous. The objection should have pointed out the part of the deposition which was objectionable. It is proper to say that much of the deposition was not vulnerable to any objection. 2. pleading: personal °* piusagey-SU1' II. The answer alleges that the defendant purchased the property of one Wagoner; the evidence showed that the purchase was made from Edward Bunbury through Wagoner. After the evidence was all introduced the defendant offered an amendment to his answer, alleging that he bought the property of Bunbury through said Wagoner, and took an assignment of a chattel mortgage held by Bunbury on the horses in question. This amendment was not verified. Objection was made to it for the reason that it was not verified and that it was immaterial. The court overruled the objection as to the want of verification, and sustained it on the ground of immateriality. We are inclined to think the ruling that the amendment was immaterial was correct. As both parties were claiming title, and the defendant was also disputing plaintiff’s [421] right of possession, it was not necessary for the defendant to plead his source of title, as that he acquired the property by gift or purchase from any particular person, or that he manufactured the harness and buggy or raised the horses. The averment in the original answer, being surplusage, should have been treated as immaterial. 's. mortgage: advertising, III. To sustain the issue oh his part, defendant introduced ' a chattel mortgage on the horses, executed by Matthew Bun-bury, deceased, to Edward Bunbury, and by the latter assigned to A. Wagoner. It is shown that Wagoner bought for the defendant. The mortgage was made in Black ITawk county, and there recorded, and the property was removed to Adams county. The mortgage provides that should the said Matthew Bunbury remove said property out of Black ITawk county, or should the said Edward Bunbury, at any time, deem himself unsafe, then said Edward or his assigns should have the right to take said property, advertise and sell the same, etc. In an action for the recovery of specific personal property, the plaintiff must recover on the strength of his own title, and not on the weakness of that of his adversary. It was the right of Edward Bunbury to take possession of this property, and for failure to advertise it for sale an action for its recovery will not lie either against him or his assignee. If plaintiff desired to reach any surplus in value after paying the mortgage, his remedy was either to redeem or by some proper proceeding compel a sale in accordance w-ith the terms of the mortgage. He cannot in this proceeding ignore the mortgage and demand an unconditional return of the property. In our judgment there was no error in allowing the mortgage to be introduced in evidence. IY. It is urged by the plaintiff that the judgment as to the buggy and harness is against the evidence. It is conceded that this part of the property was sent by Edward Bunbury from Michigan to his brother Matthew. There is no evidence of a sale. And it is clearly shown that the property was not paid for. In our judgment the court below might well find [422] from the evidence, as it did, that the property was sent with the expectation that a sale might thereafter be consummated, but that it was never completed. i. costs; apportionment Y. The costs were taxed to the respective parties in proportion to the' value of the property recovered by each. Where, as in this case, the property consists of ¿js^ne^ articles, and a recovery is had for part only, it is competent for the court to make an equitable apportionment of costs. Code, Sec. 2933. We are unable to' discover any abuse of discretion in the apportionment of costs. Aeeirmed.