
    George Game vs. Archie Whaley.
    May 5, 1890.
    Chattel Mortgage — Replevin — Evidence. — Claim by defendant of the right of possession of personal property by virtue of a mortgage held unsustained, for lack of proof of the identity of the property mortgaged and the property in controversy.
    Appeal by defendant from a judgment of tbe district court for Clay county, Holland, J., presiding.
    
      Taylor & Greene, for appellant.
    
      O. Mosness, for respondent.
   By the Court.

This action was commenced in a justice’s court for tbe recovery of certain personal property. Judgment was recovered by tbe plaintiff, wbicb upon appeal was affirmed in the district court; and from tbe judgment of tbe latter court this appeal was taken.

Tne plaintiff' alleged that be was the owner of tbe property. The defendant, in bis answer, denying tbe plaintiff’s ownership, asserted bis right to tbe possession of the property under a chattel mortgage executed by one James Game to tbe McCormick Harvesting-Machine Company, the defendant being tbe agent of that company. Tbe district court decided the case upon its construction that chapter 58 of the Laws of 1887, amending tbe law as to the period of time during wbicb chattel mortgages should be deemed valid as to subsequent purchasers, was not applicable to mortgages executed prior to that amendment of the law; and to the consideration of that question tbe brief of the appellant has been devoted. But since, for another reason relied upon by tbe respondent, the judgment must be affirmed, and as a fact which might be found to be important as affecting the question of tbe applicability of tbe law of 1887 to this case is not disclosed by tbe record, we do not enter upon tbe consideration of that question. Tbe case shows that tbe defendant took tbe property from the possession of the plaintiff. Tbe plaintiff testified, without objection, that be was the owner of it. This constituted a prima facie case in favor of the plaintiff. This is not opposed by any evidence that the property was ever owned by any other person. To overcome the plaintiff’s ease the defendant relied upon the asserted rights of his principal, as mortgagee, under the mortgage executed by a third person, James Game. But, while the mortgage was offered in evidence, there was no proof that the property mortgaged and the property in question were the same. For this reason, if for no other, the judgment of the justice of the peace, and of the district court affirming it, were right.

Judgment affirmed.'  