Leighton v. Stuart

• Decision Date: 06 January 1886
• Citation: 26 N.W. 198,19 Neb. 546
• Parties: CHARLES W. LEIGHTON AND HENRY BROWN, PLAINTIFFS IN ERROR, v. MARTHA E, STUART, DEFENDANT IN ERROR
• Court: Nebraska Supreme Court

26 N.W. 198

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

REESE J.

This was an action in replevin instituted by defendant in error, claiming the possession of the property in dispute 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, 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 against the said W. W. House, to be levied upon the hogs described in the petition, together with twenty-three other hogs, all the separate and several property of the said Zeruah C. House, and then in her possession at her residence in said county, where all the hogs mentioned in this report were and had been kept, and that immediately before the making of such levy said Zeruah C. House told L. C. Burr, who was present and personally directed the same on behalf of said defendants, that all the hogs levied upon were her separate property as aforesaid; that the hogs so levied upon were at the time of the levy of about the weight of from 160 to 175 pounds each, but of what age or other particular description the evidence does not disclose. There were in all at the time and place aforesaid, 202 hogs of varying ages, weights, and descriptions; except some five or six brood sows, the hogs were not definitely segregated into separate masses or herds.

"6. That Mr. L. C. Burr was first employed by the defendants Leighton and Brown with reference to the collection of their demands from the said W. W. House not earlier than the 6th day of October, 1877.

"7. That the hogs so levied upon were at and after the date of the levy considered and treated by the plaintiff and the said Zeruah C. House as being a part of the hogs intended by the phrase in the plaintiff's mortgage "sixty hogs that will average 175 pounds each."

"8. That on the 12th day of December, 1877, the said Zeruah C. House began a proceeding before George K. Amory, then one of the justices of the peace of said county, for the purpose of trying the right of property to the hogs levied upon, which she claimed in said proceeding to belong to her; and that such proceedings were thereupon had that on the 17th day of December, upon a trial before said justice and a jury, in which the said defendants Leighton and Brown participated, it was found and adjudged that the right of property in said hogs was in the said Zeruah C. House, and that said findings and judgment have never been impeached by said defendants, by appeal, petition in error, or otherwise. And said justice thereupon issued an order to the constable directing him to return said hogs to said Zeruah C. House.

"9. That notwithstanding the finding and judgment mentioned in the last preceding paragraph, the constable by whom the executions were levied as aforesaid, at the instance of the said Leighton and Brown, and upon their executing to him a bond of indemnity for so doing, proceeded to advertise the hogs mentioned in the petition in this action for sale pursuant to said levy and so sold the same on the 18th day of December, 1877, to the said Leighton and Brown, "subject to a certain mortgage to one William Alexander for $ 50," for the sum in the aggregate of $ 168.75.

"10. That at the date of the said execution sales the amount due upon the judgments upon which they were issued was $ 180, and at that date the value of the thirty-four hogs sold was $ 297.50.

"11. At or prior to the levy of said executions, neither the defendants Leighton and Brown nor said L. C. Burr had any actual notice of the plaintiffs' mortgage other than as hereinbefore stated.

"12. That on the 19th day of ...