26 N.W. 198 (Neb. 1886), Leighton v. Stuart

Citation:26 N.W. 198, 19 Neb. 546
Opinion Judge:REESE, J.
Party Name:CHARLES W. LEIGHTON AND HENRY BROWN, PLAINTIFFS IN ERROR, v. MARTHA E, STUART, DEFENDANT IN ERROR
Attorney:J. R. Webster, for plaintiffs in error. Ryan Bros. and A. J. Sawyer, for defendant in error.
Case Date:January 06, 1886
Court:Supreme Court of Nebraska
 
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Page 198

26 N.W. 198 (Neb. 1886)

19 Neb. 546

CHARLES W. LEIGHTON AND HENRY BROWN, PLAINTIFFS IN ERROR,

v.

MARTHA E, STUART, DEFENDANT IN ERROR

Supreme Court of Nebraska

January 6, 1886

          ERROR to the district court for Lancaster county. Tried below before MITCHELL, J.

          AFFIRMED.

         J. R. Webster, for plaintiffs in error.

         Ryan Bros. and A. J. Sawyer, for defendant in error.

          OPINION

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          REESE, J.

         This was an action in replevin instituted by defendant in error, claiming the possession of the property in dispute [19 Neb. 547] as the mortgagee of W. W. House and Zeruah C. House, and alleging upon belief that the property in dispute prior to the execution of the mortgage was the separate and individual property of said Zeruah C. House. The cause has been before this court twice before, and is reported in 10 Neb. at page 224, and in 14 Neb. at page 37.

         The last trial was had before John H. Ames, Esq., referee, who reported his findings of fact and conclusions of law, and upon which judgment was rendered in favor of defendant in error. The findings of the referee are as follows:

         FINDINGS OF FACT.

         "1. That on and prior to the 30th day of October, 1876, one Zeruah C. House was the owner, as of her own separate property and estate, of about sixty-two or sixty-three hogs, of what weight, size, or particular description the evidence does not disclose.

         "2. That on the said 30th day of October, 1876, the said Zeruah C. House joined with her husband, W. W. House, in the execution of a certain chattel mortgage to the plaintiff, Martha E. Stuart, in consideration of which the plaintiff at that time loaned and advanced to the said W. W. House, in good faith and reliance upon the security of said mortgagee, the sum of $ 490.50, to become due by the terms of the mortgage at the expiration of three months from its date. That L. C. Burr, afterwards and now employed by the defendants Leighton and Brown as one of their attorneys as hereinafter mentioned, was present at the time of the delivery of said mortgage and the advancement of said money, representing one L. E. Kennard. That the said mortgage was duly signed by both of the said mortgagors, but was acknowledged by said W. W. House only, and was filed for record in the clerk's office of Lancaster county, that being the county of the residence of the mortgagors and of the situation of the property in the mortgage described, [19 Neb. 548] on the 6th day of November, 1876, and was duly refiled in said office on the 3d of November, 1877.

         "3. That said mortgage, besides describing other personal property, contained the following description and no other as to hogs: 'Sixty hogs that will average 175 pounds each.'

         "4. That on the 25th day of October, 1877, the said W. W. and Zeruah C. House executed a mortgage to the defendant Alexander, to secure the sum of $ 50 upon certain brood sows not in controversy in this action.

         "5. That on the 6th day of December, 1877, the defendants Leighton and Brown caused two executions to be sued out of the county court of Lancaster county upon two judgments therein recovered by said defendants

Page 200

against the said W. W. House, to be levied...

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