Spence v. Sterchi Bros. Stores Inc.

1. In the foreclosure of an alleged conditional-sale contract under the procedure governing the foreclosure of a chattel mortgage as provided by the Code of 1933, §§ 67-1601, 67-1602, 67-1603, on the trial of an affidavit of illegality filed by the defendant under § 67-801, setting up that he did not buy the property in question, and did not execute the alleged retention-of-title contract, the plaintiff was not entitled to prevail merely because the undisputed evidence showed that the defendant had bought, retained, and used the property. In order for the plaintiff to be entitled to proceed…