Becker v. Anderson

• Decision Date: 07 July 1881
• Citation: Becker v. Anderson, 11 Neb. 493, 9 N.W. 640 (Neb. 1881)
• Parties: JOHN P. BECKER AND OTHERS, APPELLANTS, v. LAFAYETTE ANDERSON, APPELLEE
• Court: Nebraska Supreme Court

9 N.W. 640

11 Neb. 493

JOHN P. BECKER AND OTHERS, APPELLANTS, v. LAFAYETTE ANDERSON, APPELLEE

Supreme Court of Nebraska

July 7, 1881

APPEAL from the district court of Platte county.Tried below before POST, J.

Reversed and remanded with directions.

A. C Turner and Byron Millett, for appellants, cited Hooker v Hammill,7 Neb. 231. Gen. Stat., sec. 17,875.Irwin v. Welch,10 Neb. 479.Kilbourn v. Fay,29 Ohio St. 264.Bump on Fraud, 2d Ed., 514.Blakeslee v Rossman,43 Wis. 116.Robbins v. Parker, 3 Met., 117.Russell v. Winne, 37 N.Y. 591.

Whitmoyer & Gerrard and E. Wakeley, for appellee, cited Alvis v. Morrisen,63 Ill. 181.Schroder v. Keller,84 Ill. 46.Shaller v. Brand, 6 Binney, 438.Merriam v. Harsen, 2 Barb. Ch., 232.Seal v. Duffy, 4 Penn. State, 274.Williams on Executors, 1679.Herman, Chattel Mortgages, 154.

OPINION

MAXWELL, CH. J.

This is an action by two creditors of the estate of Lester C. Platt, to cancel a chattel mortgage alleged to have been executed by him in favor of the defendant.It appears from the record, that on the 18th of September, 1875, Platt, being very sick, executed what purports to be a mortgage of all his "personal property, consisting of nine mules, three horses, fifteen colts and ponies, eight oxen, five cows, twenty-five head of young cattle, twenty-five sheep, six swine, seven wagons, ten plows, two mowing machines, one seeder, one corn planter, two horse hoes, one fanning mill, eight sets harness, all crops on the land and grain raised in the year 1875, one undivided half of all buffalo robes, and stock of goods in store and other goods," and delivered the same to the defendant to secure the sum of $ 2,203.00.This was a bona fide debt contracted about a year before the execution of the mortgage.The plaintiff's claims also are bona fide, and so far as appears, no reason exists why the claim of the defendant should be preferred over theirs.Platt had a farm and kept a store near the Pawnee reservation, and the defendant seems to have been engaged with him as a partner in the purchase of buffalo robes and perhaps in other ventures.At the time of the execution of this instrument, Platt was indebted in a very large amount to various parties, of which the defendant had full knowledge.He was also indebted to his wife for money belonging to her separate estate, which he had borrowed from her.An attempt seems to have been made to secure this debt by a mortgage on the farm, which, upon the estate proving insolvent, seems to have been abandoned, although the claim appears to have been valid.On the 16th day of September, 1875, Platt made a will, in which Elvira G. Platt, Lafayette Anderson, and others, were appointed executors.Platt died on the 24th of September, 1875, and the will was duly admitted to probate on the 28th of October of that year, and Elvira G. Platt and the defendant are the executors of the same.The mortgage in controversy was filed for record on the 18th day of September, 1875, but the mortgagee did not take possession of the goods, claiming as mortgagee, until January, 1876.A portion of the mortgaged goods was exchanged for others, and the store seems to have been kept open and goods sold the same after as before the execution of the mortgage.There probably was no intention on the part of the defendant to actually defraud the creditors of the estate, but there seems to have been an indifference on his part to their claims in striking contrast to his auxioty to secure his own.So far as the record discloses, the defendant has no superior equity over other creditors of the estate, and must rely on his naked legal rights.

Section 73 of Chap. 43 of the Revised Statues of 1866, which was in force at the time the mortgage in question was executed, was as follows: "Every mortgage, or conveyance intended to operate as a mortgage of goods and chattels hereafter made, which shall not be accompanied by an immediate delivery, and be followed by an actual and continued change of possession of the things mortgaged, shall be absolutely void as against the creditors of the mortgagor, and as against subsequent purchasers in good faith, unless the mortgage or a true copy thereof shall be filed and recorded as directed by law."

Section 16 provides that "all deeds, mortgages, and other instruments which are required to be recorded, shall take effect and be in force from and after delivering the same to the clerk for record and not before, as to all creditors and subsequent purchasers in good faith without notice."

Section 17 provides that "they shall not be deemed lawfully recorded unless the same shall have been previously acknowledged or proved in the manner prescribed."

Section 2 provides that "the grantor must acknowledge the instrument to be his voluntary act and deed."

Our present statute requires a chattel mortgage to be filed but not recorded, and provides that no acknowledgment thereof is necessary.Laws of 1879, 108.But under the provisions of the law in force in 1875, a chattel mortgage, to be effectual as against creditors and subsequent purchasers in good faith was required to be filed and recorded.To entitle it to be recorded it must...