Wilbur v. Josselyn , 78 Me. 396 ( 1886 )

ViRGiN J.

Trover to recover the value of a yoke of steers the title thereto being claimed by each of the parties. The defendant admitted that he took the steers from the possession of the plaintiff claiming to own them.

One McKeen, owning the steers, on Febnary 27, 1884, mortgaged them with other live stock to one Dennison to secure a note for $250, which mortgage and note together with sundry other notes and mortgages of personal property, Dennison, in August 29, 1884, delivered to the defendant as collateral securit}' for the latter’s signing as surety a bank note for $1000, which note the defendant was obliged to pay after maturity.

The plaintiff claimed that, prior to the delivery of the mortgage and note t o the defendant as collateral security, McKeen released his right of redeeming the steers and sold them outright to Dennison, who, on September 29, 1884, sold them to one Keene taking back a mortgage thereof to secure Keene’s note for $95, which note Dennison assigned to the plaintiff. This the defendant denied. The only witnesses were the parties. The jury, after seeing and hearing the witnesses testify, found that the sale from McKeen to Dennison was bona fide, which finding we do not consider it our duty to disturb.

There was no testimony .on which the requested instruction could be based; and if there were, the request was rightly refused. Dennison testified that he informed the defendant that the steers were not included in the mortgage when it was delivered to him ; and while the defendant denies that any such conversation took place, he testifies that no conversation at all in relation to the steers took place.

The other instructions could not injure the defendant; if the finding of the jury is correct, he has no title whatever on which to base any authority to take the steers from the plaintiff’s possession, which was title enough for the plaintiff as against the defendant.

Motion and exceptions overruled.

Peters, C. J., Walton, Libbey, Emery and Haskell, JJ., concurred.