Camp v. Pollock

• Decision Date: 17 September 1895
• Citation: 64 N.W. 231,45 Neb. 771
• Parties: CAMP v. POLLOCK.
• Court: Nebraska Supreme Court

45 Neb. 771

64 N.W. 231

CAMP

v.POLLOCK.

Supreme Court of Nebraska.

Sept. 17, 1895.

Syllabus by the Court.

1. In this state, the title to chattels mortgaged remains in the mortgagor. The mortgage creates merely a lien. Musser v. King, 59 N. W. 744, 40 Neb. 892, followed.

2. A plaintiff in replevin, claiming under a chattel mortgage, must in his petition allege the facts creating his interest, and facts entitling him to possession.

3. There is no presumption that a mortgagee of chattels before condition broken has any right to the possession as against the mortgagor.

4. A mortgagee of chattels cannot maintain a possessory action against a stranger unless, as between mortgagor and mortgagee, the latter has the right of possession.

5. Leave to amend a pleading may be properly refused where the motion does not disclose the nature of the proposed amendment.

6. Where damages are liquidated, and there is no conflict of evidence as to their amount, the court may direct the jury as to the precise amount, and not leave it to the assessment of the jury.

Error to district court, Cedar county; Norris, Judge.

Action in replevin by James F. Camp against William A. Pollock. Defendant had judgment, and plaintiff brings error. Affirmed.Wilbur F. Bryant and J. C. Robinson, for plaintiff in error.

Barnes & Tyler and Jay & Beck, for defendant in error.

IRVINE, C.

This was an action in replevin for certain live stock, the plaintiff claiming under two chattel mortgages, and the defendant--a judgment creditor of the mortgagor, who was substituted for the sheriff, the original defendant--claiming under a levy of execution upon his judgment. At the close of the evidence the court directed a verdict for the defendant. Judgment was entered on this verdict, and the plaintiff seeks a reversal. The assignments of error chiefly argued relate to the action of the court in excluding from evidence one of the mortgages under which plaintiff claims. Many objections were urged to the mortgage, among them being that the petition stated no cause of action. The court seems to have based its ruling on other grounds, but, if the objections were well taken on this ground, a consideration thereof practically disposes of the case.

The petition alleged that the plaintiff “has a special ownership and property in, and is now, and was at the commencement of this suit, entitled to immediate possession of, the following goods and chattels, to wit.” Then, after describing the property, the petition proceeds: “The special ownership and property of plaintiff in said property consists in, and arises by virtue of, two certain chattel mortgages thereon, as follows: One executed and delivered by one A. Burrall to plaintiff on or about April 24, 1888, covering the four bulls above described, with other property, and one executed and delivered by the said A. Burrall and one R. E. Burrall to the plaintiff on or about October 15, 1889, covering all the property above described, except the four bulls, both of which said mortgages are still in full force and unsatisfied; and of the existence of said mortgages, and plaintiff's lien and rights thereunder, the said defendant had both actual and constructive notice prior to the issuance and levy of his execution on said property.” The remaining allegations are not material to the question presented. It is claimed that this petition is defective, in that it avers no facts entitling the plaintiff to the possession of the property. It will be observed that it nowhere appears in the petition that the debt to secure which the mortgages were given was due, or that, by breach of condition or stipulation in the mortgage, the plaintiff had a right to possession. In many states it is the law that a mortgage on chattels passes title to the mortgagee. Where this is so, a general allegation of ownership is sustained by proof of a mortgage, and proof of title raises a presumption of the right of possession. In a few early cases in this court, there were dicta to the effect that the foregoing was the law of this state. But in several recent cases the point was distinctly presented, the dicta referred to disapproved, and the law declared to be that the legal title remains in the mortgagor, and, until foreclosure, the mortgagee has merely a lien on the property. Musser v. King, 40 Neb. 892, 59 N. W. 744;Randall v. Persons (Neb.) 60 N. W. 898;Sharp v. Johnson (Neb.) 62 N. W. 466. It follows that a general allegation of ownership will not be supported by proof of a chattel mortgage, but that the special claim must, in such case, be pleaded. Indeed, this was the precise point presented in the cases cited.

The plaintiff in this case did plead specially his mortgages, but he has not pleaded sufficient to establish his right of possession,...