Alexander v. Graves

• Decision Date: 04 January 1889
• Citation: 41 N.W. 290,25 Neb. 453
• Parties: ALEXANDER ET AL. v. GRAVES.
• Court: Nebraska Supreme Court

25 Neb. 453

41 N.W. 290

ALEXANDER ET AL.

v.GRAVES.

Supreme Court of Nebraska.

Jan. 4, 1889.

Syllabus by the Court.

A. purchased certain personal property from B. on time, and, for the purpose of securing the purchase price, executed a chattel mortgage on the property purchased. The purchase was made, and the chattel mortgage executed, under an assumed and fictitious name. The parties to the transaction being unacquainted, the vendor supposed the name given was the true name of the purchaser. The purchaser stated that his residence was in Webster county, which was correct, and the mortgage was duly filed in the proper office in that county. Subsequent to the filing of the mortgage, A. sold the property to C. under his true name, after C. had examined the records for chattel mortgages executed by A., and found none. In an action of replevin by B. against C., for the possession of the mortgaged property, it was held that B. should recover judgment.

Error to district court, Webster county; GASLIN, Judge.

Action of replevin by Alexander Bros. against Joseph Graves. From a judgment for defendant, plaintiffs bring error.Kaley Bros. and Batty & Castro, for plaintiffs in error.

J. S. Gilham, for defendant in error.

REESE, C. J.

This case was tried upon a stipulation of facts, in connection with the deposition of one witness, and copies of certain notes and a chattel mortgage. The facts, as agreed upon, were substantially that on the 6th day of November, 1885, plaintiffs were engaged in the business of buying and selling horses and mules at Hastings, in this state. That on that day a man came to their barn, and gave his name as Albert McCoyl, representing that he resided in, and was engaged in farming on, the N. W. 1/4 of section 16, township 4, range 10, Webster county, near the town of Cowles. That he desired to purchase a span of horses, and gave plaintiffs the names of two or three parties whom he said knew him, and went with plaintiff to see them, but they were not in their places of business at the time the plaintiffs and purchaser were there. Plaintiffs, finally concluding that it would be safe to sell him the team, closed the contract at $260,--$200 of which was represented by a promissory note due on the 1st day of November, 1886; the remaining $60, by a promissory note maturing on the 1st day of March, 1886. The mortgage was given on “one dark iron gray mare, about six years old, about fifteen and a half hands high; one spotted mare, about five years old, about fifteen and a half hands high, bought of Alexander Brothers this day; one bay horse, about five years old, about sixteen hands high; one set of double farm harness, one Studebaker manf'g farm wagon, almost new; one red cow, about seven years old, owned by said mortgagor, free from all liens, and now in my possession, on north-west cor sec. 16, T. 4, R. 8, Webster Co.” This sale was made on Friday. Soon after the execution and delivery of the promissory notes and mortgage, plaintiffs forwarded the mortgage to the county clerk of Webster county, with instructions to file the same of record. The mortgage was received by the clerk at 9 o'clock on Monday morning, and filed at 15 minutes thereafter. The property being delivered to the purchaser at the time of the sale, he started toward Cowles, Webster county, the same evening, and arrived there...