Blue Valley Bank v. Clement

• Decision Date: 19 January 1886
• Parties: BLUE VALLEY BANK v. CLEMENT AND OTHERS.
• Court: Nebraska Supreme Court

26 N.W. 583

BLUE VALLEY BANK v. CLEMENT AND OTHERS.

Supreme Court of Nebraska

January 19, 1886

Error from Gage county.

Hardy & McCandless and Griggs & Rinaker, for plaintiff.

J. E. & T. D. Cobbey, Hazlett & Bates and Burke & Prout, for defendants.

OPINION

MAXWELL, J.

This is an action of replevin brought by the plaintiff against the sheriff of Gage county to recover the possession of goods levied upon while in the plaintiff’s possession under various orders of attachment as the property of Louis Tessier. The defendants, as attaching creditors, were afterwards substituted for the sheriff. The plaintiff claims the right to the possession as mortgagee of the property, and the property, while in its possession as such mortgagee, was levied upon and taken out of its possession under the attachments. The plaintiff then recovered possession under an order of replevin. The property was appraised at $4,997.85. On the trial of the action of replevin the court found that the plaintiff was entitled to the possession of the property by virtue of two chattel mortgages, upon which there was due the sum of $________, and that the plaintiff had sold the balance of the goods, which, with interest from June 1, 1883 were worth $2,075.94; and judgment was rendered in favor of the defendants for that sum. It is admitted that the plaintiff’s mortgages are valid so that the only question presented is the right of the parties to the possession.

A chattel mortgage, if valid, which authorizes the mortgagee upon default, to take possession of the property, and retain possession of the same until the lien is satisfied, certainly gives the mortgagee a right to retain the possession as against a lien subsequently acquired. In other words, if the property when attached is subject to a lien bona fide placed upon it by the debtor, the lien must be respected, and the attachment postponed to it. Nathan v. Giles, 5 Taunt. 558; Ballio v. Poisset, 8 Mart. 176; Reeves v. Johnson, 7 Halst. 29; Peck v. Webber, 7 How. (Miss.) 658; Meeker v. Wilson, 1 Gall. 418; Haldeman v. Hillsborough & C. R. Co., 2 Handy, 101. The reason is that an officer, to make a valid levy of an attachment, must have the actual possession and custody of the goods. See Murf. Sher. § 358 et seq., and cases cited. If he is not entitled to take possession by reason of some prior subsisting lien, the statute provides for another proceeding, viz., garnishment. Section 207 of the Code provides that "if the...