Legal Opinion

Russell v. Butterfield

New York Supreme Court

Decided May 15, 1839PublishedCited by 35 opinions

Error from the Onondaga common pleas. Russell brought an action of replevin in the delinet, against the defendant Jefferson Butterfield, and on the trial the following facts appeared: on the 23d March, 1835, Russell sold a horse, waggon and .harness to George W. Butterfield, for the sum of .$90, and to secure the payment thereof, took a mortgage of the same property, with a defeazance therein expressed, that the same should be void on the payment of $50 on the first day of…

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Error from the Onondaga common pleas. Russell brought an action of replevin in the delinet, against the defendant Jefferson Butterfield, and on the trial the following facts appeared: on the 23d March, 1835, Russell sold a horse, waggon and .harness to George W. Butterfield, for the sum of .$90, and to secure the payment thereof, took a mortgage of the same property, with a defeazance therein expressed, that the same should be void on the payment of $50 on the first day of November next after the date of the mortgage, and the further sum of $40, in one year thereafter. The property to remain…

1Opinion of the Court

By the Court,

Cowen, J.

The court clearly erred in deciding that the removal of the horse to Osioego, did not violate the provision in the mortgage. It was, in its own nature, calculated to hazard the plaintiff’s security, and worked that effect. This was the very evil which the clause providing against a removal was intended to prevent.

It is now said the mortgage was fraudulent, by reason of the continued possession of the mortgagor. This is not necessarily so. The plaintiff never parted with his property absolutely. The sale and mortgage were one act, like saying, “ I sell, but the sale shall…

2Cases cited1 opinion

  1. Lyle v. BarkerSupreme Court of Pennsylvania · 1813

3Cited by35 opinions

  1. Wicker v. HoppockSupreme Court of the United States · 1867
  2. Lawrence v. PorterCourt of Appeals for the Sixth Circuit · 1894
  3. Fowler v. HoffmanMichigan Supreme Court · 1875
  4. Chandler v. ColcordSupreme Court of Oklahoma · 1893
  5. Cushing v. Seymour, Sabin & Co.Supreme Court of Minnesota · 1883

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