First National Bank v. Stewart
New Mexico Supreme Court
Appeal from the district court of Eddy county, before Wm. H. Pope, Associate Justice. Where the mortgagor remains in the possession of mortgaged goods which are in themselves perishable, either from natural causes or by virtue of the use to which they are put, such mortgage is void against attaching or execution creditors.
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Appeal from the district court of Eddy county, before Wm. H. Pope, Associate Justice. Where the mortgagor remains in the possession of mortgaged goods which are in themselves perishable, either from natural causes or by virtue of the use to which they are put, such mortgage is void against attaching or execution creditors. That where such arrangement is provided in the instrument itself; that is to say, where it is provided in the mortgage that the mortgagor shall retain possession and use the goods as if they were his own, the instrument is void on its face, and the court as a matter of law…
1Opinion of the Court
OPINION OF THE COURT.
ABBOTT, J.
2 The appellant says that the mortgage from Clark Brothers to the appellee, under which it claims title and possession, is fraudulent and void as a matter of law, and on its face, as against the execution under which he seized the goods in controversy. This contention rests on his construction of this clause in the mortgage: “Provided, further, That until default be made by the said parties of the first part in the performance of the conditions aforesaid it shall and may be lawful- for them to retain possession of the said goods and chattels and to use and enjoy…
2Cases cited4 opinions
- Robinson v. ElliottSupreme Court of the United States · 1875
- Huntley v. KingmanSupreme Court of the United States · 1894
- Gay v. BidwellMichigan Supreme Court · 1859
- Clark v. HymanSupreme Court of Iowa · 1880
3Cited by4 opinions
- Turner v. New Brunswick Fire Ins. Co.New Mexico Supreme Court · 1941
- Joe Heaston Tractor & Implement Co. v. ClaussenNew Mexico Supreme Court · 1955
- In re HarndenDistrict Court, D. New Mexico · 1912
- Schwabacher Bros. v. PalmerDistrict Court, D. Alaska · 1910