Letcher v. Norton

Citations

• 5 Scam. 575

Syllabus

<p>Appeal from Madison.</p> <p>1. Witness dead — testimony admissible. On the trial of the right of property be tween a mortgagee of,chattels and an execution creditor of the mortgagor, the former offered to prove that a deceased witness testified upon a former trial between the same parties that a good and valuable consideration was paid by the mortgagee to the mortgagor at the time of the execution of the mortgage : Held, that the evidence was admissible.</p> <p>2. Chattel mortgage — possession in mortgagor. In the same case the mortgage provided that in case of a failure to pay the money on the part of the mortgagor the mortgagee should have the right to take possession of the property mortgaged, and to sell the same. The mortgage further provided that “until default be made in the payment of said sum of money said property to remain and continue in the quiet and peaceable possession of the said goods and chattels, and the full and free use and enjoyment of the same Held, that these provisions entitled the-mortgagor to retain possession of the property until default in the payment of the mortgage, and that such possession was not fraudulent as to creditors. And, it seems, proof that the mortgage was bona fide would have been conclusive as to the right of the mortgagee to claim the property as against the creditor, (a) </p>