First National Bank v. Wilbur
Supreme Court of Colorado
Appeal from Dist/riot Court of Arapahoe County. In October, 1882, Matthew O. Wilbur brought this suit against the First National Bank of Colorado Springs to recover the difference between the price at which certain personal property was sold under mortgage by the bank, and its value in the market at the date of sale; and also to recover the difference between the actual value of certain assigned book accounts and the price at which the same were sold.
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Appeal from Dist/riot Court of Arapahoe County. In October, 1882, Matthew O. Wilbur brought this suit against the First National Bank of Colorado Springs to recover the difference between the price at which certain personal property was sold under mortgage by the bank, and its value in the market at the date of sale; and also to recover the difference between the actual value of certain assigned book accounts and the price at which the same were sold. The complaint in form is analogous to one in the old action of trover, and contains all its essential elements. It set up the ownership of the…
1Opinion of the CourtJustice Hayt
To hold that an action in the nature of trover can be maintained under the circumstances of this case would be contrary to the uniform current of both American and English authority. To support such an action the plaintiff must allege and prove a right of possession in himself, and a conversion of the- property by the defendant. The right of possession being in the mortgagee, the mortgagor cannot, after default, maintain trover against him for a refusal to surrender the property or for selling it. It is no answer to say that the forms of action have been abolished by our Civil Code. The legal…
2Cases cited12 opinions
- Atchison v. GrahamSupreme Court of Colorado · 1890
- Bragelman v. . DaueNew York Court of Appeals · 1877
- Exchange Bank v. FordSupreme Court of Colorado · 1884
- Webber v. EmmersonSupreme Court of Colorado · 1877
- Landon v. EmmonsMassachusetts Supreme Judicial Court · 1867
7 more not listed; retrieve them via the Exa API.
3Cited by6 opinions
- Ulrich v. Security Investment Co.Hawaii Supreme Court · 1939
- Hurt v. HubbardSupreme Court of Colorado · 1907
- J. H. Hincke Printing Co. v. BaileySupreme Court of Colorado · 1928
- Grattan v. WilsonSupreme Court of Colorado · 1927
- Sapirie v. CollinsIndiana Court of Appeals · 1919
1 more not listed; retrieve them via the Exa API.