Stein v. Munch

Berry, J. The court below finds that at the time of the execution and delivery of the chattel mortgage involved in this action it was stipulated, by and between the mortgagor and the mortgagee, that the mortgagor should retain possession of the mortgaged property; that he should continue and carry on the retail drug business, with the stock of drugs, etc., [394] (being the property mortgaged,) in his own name, and that bee should sell and dispose of the same in the usual course of business, and as his own. This stipulation made the mortgage fraudulent and void, as respected the mortgagor’s creditors. Horton v. Williams, 21 Minn. 187. As is further remarked in that case, the character of the instrument, as regards the rights of the mortgagor’s creditors, “depends on the intent with which it was made.” From this it follows-that it is not in the power of the mortgagee or his assigns-to remove the original taint of the mortgage, and make it good, by taking so much of the mortgaged property as has not been sold by the mortgagor into possession under and by virtue of the mortgage. Blakeslee v. Rossman, 44 Wis. 550; Robinson v. Elliott, 22 Wall. 513; Delaware v. Ensign, 21 Barb. 85; Janvrin v. Fogg, 49 N. H. 340. This conclusion disposes of the case. Judgment affirmed. Note. — The Chief Justice, having been of counsel, took no part in this case.