Boyd v. Busch

Oeeutt, J., delivered the opinion of the Court. This appeal is from a judgment for the defendant in an action of replevin instituted in the Circuit Court for Somerset County, by Robert Boyd against Rudolph Busch, Sr., Marie Busch, and John Busch, for the recovery of certain chattels described in a mortgage1, duly executed, acknowledged, and recorded, from Rudolph Busch, Sr., and Marie Busch, his wife, to Boyd. To the declaration, which is in the usual form, the defendants filed two pleas, (1) that they did not take the goods mentioned in the declaration, and (2) “that at the time of the issuing of the writ in this case the property in the tractor, with all the attachments belonging thereto1, and in the incubator, mentioned in the declaration, was in Rudolph Busch, Jr., that at the time of the issuing of the writ in this case the property in the piano, Sonora talking machine, brass bed, mirror, baby basket and child’s table and bench, mentioned in the declaration, was in Lillian Busch, the wife of Rudolph Busch, Jr., and that at the time- of the issuing of the writ in this case the property in the American Lío. 1 sawing outfit, mentioned in the declaration, was in John A. Busch, one of the above named defendants.” The plaintiff joined issue on the first plea and traversed the second. The defendants joined issue on the traverse, and the case was tried on issues thus made.

At the conclusion of the whole case the plaintiff offered five prayers, of which the third, fourth, and fifth were granted, and the first and ³ second refused. That ruling is the subject of the only exception presented by the record. Plaintiff’s first prayer rests upon the proposition that the mere fact that the chattels scheduled in the sheriff’s return were mentioned in the mortgage from Rudolph Busch, Sr., and Marie Busch to him created a prima, facie presumption that the mortgagors owned the property at the time the mortgage was executed, and it instructed the jury that if they found that fact their verdict should be for the plaintiff unless they found “from the evidence a better title in said property or some part thereof mentioned in said mortgage and so replevied, in the persons, or one of them, mentioned in the defendant’s second plea, and the burden of proving such better title in said property so mortgaged and replevied is upon the defendant”. That proposition as a legal abstraction was untenable, and the prayer was for that reason properly rejected.

The action was not only against the parties to the mortgage, but also against John Busch, also called John A. Busch, a stranger to it. And whatever might be said in support of the contention that the mortgagors should be estopped from impeaching a title which they in their mortgage had solemnly asserted, certainly a stranger to the mortgage could not be bound or in any way affected by an act of the mortgagors to which he was not a party, to which he had never assented, and which he had never ratified. Indeed the mere statement of the proposition that one can, by executing an instrument to which the real owner is a stranger, purporting to alien or pledge his property, thrust upon him, in any action affecting his title or right of possession, the burden of proving his ownership, demonstrates its fallacy. The only case cited in support of it, Josslyn v. Moose River Lumber Co., 83 Vt. 49 , is not in point.

What was decided in that case, and also in Shum v. Claghorn, 69 Vt. 45 , to which it refers, was that, where in a chattel mortgage the description of the chattel is so indefinite and vague that it could apply to a chattel not in the possession of the mortgagor as well as to one in his possession, it will be presumed in aid of the description that the ⁴ mortgagor is the owner of the chattel in his possession, which he assumes to mortgage, and that that is the chattel covered by the mortgage. But. that is a different thing from holding that a mortgagor can, by including, in a mortgage to which the owner is a stranger, a chattel not in the possession of the mortgagor, so