Chenery v. Palmer
California Supreme Court
Appeal from the District Court of the Sixth Judicial District. The plaintiff received from C. J. Hutchinson a bill of sale for 250 head of cattle, November 30th, 1853. It appears from the testimony, and is admitted, that the bill of sale, though absolute on its face, was intended only as a mortgage to secure certain sums paid and to be paid by Chenery for Hutchinson.
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Appeal from the District Court of the Sixth Judicial District. The plaintiff received from C. J. Hutchinson a bill of sale for 250 head of cattle, November 30th, 1853. It appears from the testimony, and is admitted, that the bill of sale, though absolute on its face, was intended only as a mortgage to secure certain sums paid and to be paid by Chenery for Hutchinson. Chenery did not take possession of the cattle till January or February, 1854, when he sent the bill of sale to his agent, who, under its authority, took possession of the cattle. Some of Chenery’s advances to Hutchinson occurred…
1Opinion of the Court
The first opinion of the Court was delivered by Mr. Justice Heydenfeldt,
Mr. Chief Justice Murray and Mr. Justice Terry concurring.
If the conveyance from Hutchinson to the plaintiff was a sale of the property, then it was void as to creditors for the want of immediate delivery, by the 15th section of the Statute of Frauds.
That it was not an actual sale, but only a mortgage, might be a question to be investigated between vendor and vendee, to prevent an attempted fraud by one against the other; but where the rights of third persons are to be affected, it is not the province of either to alter…
2Cited by10 opinions
- Newell v. WagnessNorth Dakota Supreme Court · 1890
- Walklin v. HorswillSouth Dakota Supreme Court · 1909
- First National Bank v. ComfortSupreme Court Of The Territory Of Dakota · 1886
- First National Bank v. WittichSupreme Court of Florida · 1894
- Gilbert v. DeckerSupreme Court of Connecticut · 1885
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