Bickford v. Johnson

Vanderburgh, J. The property in controversy is included in the chattel mortgages described in the answer. Several of these mortgages the plaintiff alleges to have been paid, others to be usurious, and one, for $1,100, to have been given without any consideration. The evidence in his behalf on the trial tended to prove these allegations; and the jury find generally in his favor, and also specially “that the $1,100 note and mortgage was executed by the plaintiff to the defendant without consideration, and only for the purpose of ■shielding plaintiff’s property from his creditors.” Plaintiff’s barn, situated upon the homestead lot upon which he resided with his family, was, with other property, described in and covered by two of the mortgages above referred to. In these mort [125] gages plaintiff’s wife did not join, and the court charged the jury.that the mortgages were invalid for that reason as respects the barn, because the same was a fixture and a part of the homestead. This instruction is assigned as error; but under the finding of the jury it is not material to consider this question here. One of the mortgages is alleged to be usurious, and the jury must have so found; for it contained other personal property, as to which the charge of usury was the only issue, and the verdict necessarily determined the question as to the usurious character of the mortgage in plaintiff’s favor. The other of these two mortgages is the $1,100 mortgage mentioned in the special finding as having been given without any consideration, and the validity of which is disputed by the plaintiff on that ground. It is, however, insisted by the defendants that the special finding is inconsistent with the general verdict for the plaintiff, for the reason that the mortgage was made with the intent to defraud plaintiff’s creditors, and the court should not, therefore, give effect to the plaintiff’s objection or defence to the mortgage for. want of consideration, since courts will not lend their aid to parties in such cases. But the defendant overlooks the distinction between executed and executory contracts. A mortgagee is not entitled to enforce a mortgage given without consideration, and to defraud credit, ors, but the mortgagor may resist its foreclosure or enforcement on such grounds; and if the mortgagee, as in this case, justifies the seizure by him of personal property by virtue of a mortgage thereon, the mortgagor may defend against it, and show the real nature of the transaction, and that it was given without consideration. The defendants took this property, as the evidence tends to prove, against the will and consent of the plaintiff, under the mortgages in question, for the purpose of foreclosure, and the issue is in respect to his right to so foreclose the same. The special finding is not, therefore, inconsistent with the general verdict, which must be permitted to stand. This substantially disposes of the merits of the appeal, and the order denying a new trial is accordingly affirmed.