Buckstaff Bros. Mfg. Co. v. Snyder

Citation54 Neb. 538,74 N.W. 863
PartiesBUCKSTAFF BROS. MFG. CO. v. SNYDER.
Decision Date08 April 1898
CourtSupreme Court of Nebraska

OPINION TEXT STARTS HERE

Syllabus by the Court.

1. A chattel mortgage which provides that the mortgagor may “remain in possession of said goods and chattels, and sell and dispose of any of the stock in trade in the regular course of business,” but contains no provision that the mortgagor shall pay the proceeds of sales made towards the satisfaction of the mortgage debt, is not merely presumptively fraudulent as to creditors of the mortgagor, but is conclusively so.

2. A debtor may make a valid oral pledge or mortgage of his property to his creditor; but, to the validity of such mortgage, it is essential that there be an immediate delivery of the mortgaged property to the creditor, and that such delivery be followed by an actual and continued change of possession of the property pledged or mortgaged.

3. Evidence examined, and held to sustain the action of the district court in directing the jury to return a verdict for the defendant in error.

Error to district court, Nance county; Sullivan, Judge.

Action by the Buckstaff Bros. Manufacturing Company against Jacob Snyder. Judgment for defendant, and plaintiff brings error. Affirmed.Chas. E. Magoon, M. I. Brower, and Albert & Reeder, for plaintiff in error.

W. F. Critchfield and M. V. Mondy, for defendant in error.

RAGAN, C.

Buckstaff Bros. Manufacturing Company, in the district court of Nance county, brought an action of replevin against Jacob Snyder. The trial resulted in a verdict and judgment in favor of Snyder, and Buckstaff Bros. have filed a petition in error here to review this judgment.

1. Buckstaff Bros. claimed the right to the possession of the property by virtue of a chattel mortgage executed thereon to them by the owner, one Harris. Snyder claimed possession of the property by virtue of an attachment levied thereon by him as sheriff in a suit brought against Harris by a creditor of his. The mortgage under which Buckstal Bros. claimed was executed on the 13th of April, 1894, and on the same date filed in the office of the county clerk of said county, and contained this provision: “And provided, further, that until default by the parties of the first part in the payment of any debt hereby secured or of any agreement herein, or until the happening of any event hereinafter provided, it shall be lawful for the parties of the first part to remain in possession of said goods and chattels, and to sell and dispose of any of the stock in trade in the regular course of business;” the party of the first part mentioned in said mortgage being the mortgagor, Harris. It will be observed that this mortgage provided that the mortgagor might remain in possession of the mortgaged property, and sell and dispose of the mortgaged goods in the regular course of business. Such a mortgage is void upon its face as to the creditors of the mortgagor. It is not merely presumptively fraudulent as to creditors, but it is conclusively so. Hedman v. Anderson, 6 Neb. 392;Sherwin v. Gaghagen, 39 Neb. 238, 57 N. W. 1005;Paxton v. Smith, 41 Neb. 56, 59 N. W. 690. The mortgage under consideration is unlike the ones considered in Turner v. Killian, 12 Neb. 580, 12 N. W. 101, and Davis v. Scott, 22 Neb. 154, 34 N. W. 353. The mortgages involved in those cases provided that the mortgagor might remain in possession of the mortgaged goods, sell the same in the usual course of business, and pay...

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1 cases
  • Buckstaff Brothers Manufacturing Company v. Snyder
    • United States
    • Supreme Court of Nebraska
    • April 8, 1898
    ...... . .          . OPINION. [74 N.W. 864] . .           RAGAN,. C. . .          Buckstaff. Bros. Manufacturing Company in the district court of Nance. county brought an action of replevin against Jacob Snyder. The trial resulted in a verdict ......

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