36 N.W. 513 (Neb. 1888), Faeth v. Leary

• Case Date: January 25, 1888
• Court: Nebraska

36 N.W. 513 (Neb. 1888) 23 Neb. 267 CONRAD FAETH, PLAINTIFF IN ERROR, v. JAMES LEARY, G. W. TUCKER, AND PARLIN, ARENDORFF & MARTIN, DEFENDANTS IN ERROR Supreme Court of Nebraska January 25, 1888           ERROR to the district court for Gage county. Tried below before BROADY, J.           REVERSED AND REMANDED.          Pemberton & Bush, for plaintiff in error, cited: Jones Chat. Mort., Sec. 709. Harris v. Lynn, 25 Kan. 281. Reynolds v. Thomas, 28 Id., 810. Campbell v. Wheeler, 26 N. W. R., 613.          R. W. Sabin, for defendants in error, cited: Schouler's Per. Prop., 557. West v. Crary, 47 N.Y. 425. Daly v. Proetz, 20 Minn. 411. Gage v. Whittier, 17 New Hamp., 312.           OPINION           [23 Neb. 268]REESE, CH. J.          This was an action in replevin, instituted by plaintiff in error against defendants in error, for the possession of a horse. The petition of plaintiff, filed in the district court, alleges that, "He has a special property and is entitled to the immediate possession of the" property in dispute, and "that plaintiff's special interest in said property is by virtue of a chattel mortgage upon it."          The answers of defendants consist of general denials.          The facts in the case may be briefly stated to be, that on November 27, 1885, Lineweber and Snyder made a chattel mortgage to plaintiff upon the horse in controversy, which was filed November 30, 1885. The mortgage also covered considerable other personal property, and was made to secure five promissory notes, amounting in all to the sum of $ 460.40. The first note matured June 1, 1886, the last December 1st of the same year. On the 18th of February, 1886, the mortgagors executed another chattel mortgage upon the same property, to defendants, Parlin, Arendorff & Martin, which mortgage was filed in the office of the county clerk, February 20, 1886, and was given to secure the sum of $ 142, due February 1, 1887. In this last mortgage the property is represented to be free from incumbrance in all respects, except the chattel mortgage previously executed to plaintiff. About August 1, 1886, the mortgagors, Lineweber and Snyder, and plaintiff sold the horse in question to one Dr. Bathrick, for the sum of $ 85, $ 11 of which was paid in cash, or its equivalent, to the mortgagee. For the remaining $ 74, Dr. Bathrick executed to plaintiff his note, due February 10, 1887, secured by a mortgage on the horse, and some other property, and the [23 Neb. 269]...