Knollin v. Jones

Citations

• 7 Idaho 466
• 63 P. 638
• 1900 Ida. LEXIS 76

Syllabus

<p>Nonsuit — Consent of Mortgagee to Saxe of Mortgaged Chattexs by Mortgagor — Titxe of Purchaser. — A mortgagee who consents to a sale being made of the mortgaged chattels by the mortgagor waives the lien of the mortgage as to such portions of the mortgaged property as the mortgagor may sell under such consent, and the purchaser takes title free of the mortgage lien.</p> <p>Same — Evidence.—Motion for nonsuit is properly denied where the evidence shows that the plaintiff, a purchaser of the mortgaged chattels, bought the property in controversy from the mortgagor with the consent of the mortgagee.</p> <p>Verdict — Continuing Transaction. — Several mortgages were given by B. & L. to E. S. B. Co. on different bands of sheep; the mortgagee consented in writing that the mortgagors sell the mortgaged property in lots to pay the mortgage debts. The mortgagors did, at various and sundry times, sell portions of the mortgaged chattels and accounted to the mortgagee for the proceeds of such sales; later, another mortgage was given on the remnant left out of the said bands of sheep, to the original mortgagee, by the mortgagors, to secure the balance diie on the original mortgage debts, with a small advance; later, the mortgagors sold a portion of the sheep to plaintiff, and after that the mortgagee caused the sheriff to seize the sheep sold to plaintiff under the last mortgage; plaintiff sued to recover possession or' the sheep so seized by the sheriff. On the trial letters were admitted in evidence over the objections of the defendants, in which the mortgagee advised and urged the mortgagors to sell all their sheep to meet their obligations. No showing was made that the mortgagee countermanded or recalled its consent to the two sales of said sheep by the mortgagors, and the evidence all tended to show, as did defendants’ answer, that the various mortgages and transactions thereunder were treated by the parties as a continuing transaction. A letter from the mortgagee to the m