Citation Numbers: 14 Neb. 37
Judges: Maxwell
Filed Date: 1/15/1883
Status: Precedential
Modified Date: 7/20/2022
This case was before this court in 1880, and is reported in 10 Neb., 224. The cause being remanded, the plaintiff amended her petition, and issue was joined thereon. On the trial of the cause in the district court a verdict was returned in favor of the defendant, upon which judgment was rendered.
It appears from the record that on the 30th day of October, 1876, W. W. House and Zeruah House, his wife, executed a chattel mortgage to the plaintiff upon a large amount of personal property, including “ 60 hogswill average 175 pounds each,” to secure the payment of the sum
After the hogs were sold the plaintiff took out a writ of replevin and reclaimed the property, and the contest in this case is between the mortgagee and execution creditors. The plaintiff claims the property upon two grounds, either
First. That Mrs. House was the owner of the property levied upon, and therefore it was not liable for the debts of her husband. There is a large amount of testimony tending to show that such was the fact, and the jury would have been justified in so finding. Undoubtedly one cause of the failure to do so was the exclusion of the chattel mortgage made by her to the plaintiff, upon the ground that it was not acknowledged. There was testimony tending to show that Mr. Burr had actual notice of this mortgage at the time of the levy, sufficient to submit the question to the jury as to his knowledge. But the exclusion of this mortgage is not assigned in the petition in error. The question therefore cannot be considered.
The second question relates to notice to the execution creditors of the plaintiff’s mortgage. That Mr. Burr, the creditor’s attorney and agent, who went upon the ground, pointed out the property and directed a levy thereon, had actual notice of this mortgage at the time he caused the execution in question to be levied, is clearly and fully proved by the decided weight of testimony, and that he had constructive notice from the record is undeniable. This being so the plaintiff’s rights are entirely unaffected by the sale of the property to Leighton & Brown. The plaintiff was therefore entitled to the possession of the property at the commencement of the action.
The judgment of the district court is reversed and the cause remanded for further proceedings.
Reversed and remanded.