Dale v. Council Bluffs Sav. Bank

• Decision Date: 22 July 1902
• Parties: DALE v. COUNCIL BLUFFS SAV. BANK. BROWN v. COUNCIL BLUFFS SAV. BANK.
• Court: Nebraska Supreme Court

65 Neb. 692

91 N.W. 526

DALE

v.COUNCIL BLUFFS SAV. BANK.

BROWN

v.COUNCIL BLUFFS SAV. BANK.

Supreme Court of Nebraska.

July 22, 1902.

Syllabus by the Court.

1. Although, in ordinary cases, an agister's remedy is exclusively that which is provided by statute, there is no reason why this method may not be departed from, with the preference and consent of the parties interested; and in the case at bar it is held that the question whether such consent was given was one of fact, which should have been left to the determination of the jury.

Commissioners' opinion. Department No. 3. Error to district court, Douglas county; Slabaugh, Judge.

Action by the Council Bluffs Savings Bank against Walter F. Dale and Henry E. Brown. Judgment for plaintiff, and defendants bring error. Reversed.T. J. Mahoney and F. J. H. Larson, for plaintiffs in error.

J. A. C. Kennedy and Kennedy & Learned, for defendant in error.

AMES, C.

This cause was argued and submitted at the same time as those of Becker v. Brown (Neb.) 91 N. W. 178, and Same v. Dale, Id., decisions in which are announced herewith. For a statement of facts in addition to such as contained herein, reference is made to the opinion in those cases. As was there decided, Brown and Dale were in possession of the cattle which are the subject of this controversy, in virtue of valid agisters' liens thereon in their favor, respectively. The second mortgage executed by Woollen to Becker and Degan will, for the purpose of this opinion, be treated as valid as between the parties thereto, but it was subject to the liens of the agisters. The mortgage soon after its execution had been assigned to the defendant in error, the Council Bluffs Savings Bank, and the note which it was given to secure had been indorsed and delivered to it; but the cattle being in the possession of the agisters, the bank had constructive notice of their liens. When Perry, the agent of the mortgagees, demanded the cattle from Brown and Dale, and afterwards took them and drove them to Atlanta, he did so for the avowed purpose of shipping them to South Omaha, and selling them, and applying the funds to or towards the payment of the mortgage debt. After Perry had demanded the cattle for this purpose, and had asserted that Woollen had abandoned all claim to them, Brown and Dale went and saw the latter, who said to them: “You see that you get your feed lien satisfied out of the cattle. So far as I am concerned, I can do nothing for you, but you get your feed lien out of the cattle, and it will be perfectly satisfactory to me.” He said “he did not expect to be able to take any part; he was very much broken in health, his health completely shattered, and he was under the doctor's care, and considered...