Cruger v. Clark

McCay, Judge.

It would be hard to say that a verdict for either of these parties would, under the evidence as set forth in this record, be contrary to the evidence. As it is, we incline to agree with the jury. Admitting that Cruger advanced his money in December 1866, nothing seems to have been done to secure him but to deposit the lease in his keeping. By section 1978 of the Revised Code, the equitable mortgage arising from the deposit of title deeds is abolished, so that Cruger got no right in this debt by the deposit. The transfer to Clark .was made in August. This transfer was by the apparent owner. At any rate, the contract of the tenant was with Pulk Robenson, and prima fade he had a right to transfer. It is true it is part of the admission in the issue that the real owner was George F. Robenson, but unless it be shown that Clark knew this at the time he advanced his money and took the transfer, we think he got a good title to the debt. The fact that the lease was, at the time, under deposit with Cruger, could not affect the matter. The date of the deposit with Cruger of the lease does not appear.

It is said by the witness that at the time there was eight months rent due; whether this means eight months of the year had elapsed or were yet to elapse, is not clear. We should understand that eight months had elapsed. This would make Cruger’s transfer subsequent to Clark’s. The written transfer was not till December, 1867. It may be true that the elder Robenson acted in bad faith to the son in the transfer to Clark, but as he was the nominal owner of the debt for the rent, Clark had a right to deal with him as the true owner, without notice to him that the younger Robenson was the true owner. This money comes into Court on Clark’s process. He has the possession, and the burden of proof is on Cruger. He has too the legal title, since his transfer is from the person who actually rented the property to the tenant.

We think Cruger has failed to make such a case as would make it our duty to set aside this verdict. At best the case is one of doubt; the evidence is conflicting, and a verdict 0%. a jury must be strikingly wrong to justify its reversal.

Judgment affirmed.