Dale v. Council Bluffs Savings Bank

• Court: Nebraska Supreme Court
• Writing for the Court: AMES, C.
• Citation: Dale v. Council Bluffs Savings Bank, 65 Neb. 692, 91 N. W. 526 (Neb. 1902)
• Decision Date: 22 July 1902
• Docket Number: 11,879
• Parties: WALTER F. DALE ET AL. v. COUNCIL BLUFFS SAVINGS BANK. [*]

91 N.W. 526

65 Neb. 692

WALTER F. DALE ET AL. v. COUNCIL BLUFFS SAVINGS BANK. ^[*]

No. 11,879

Supreme Court of Nebraska

July 22, 1902

ERROR from the district court for Douglas county. Tried below before SLABAUGH, J. Reversed.

REVERSED.

Timothy J. Mahoney, J. H. Larson and James A. C. Kennedy, for plaintiffs in error.

Kennedy & Learned, contra.

AMES C. DUFFIE and ALBERT, CC. concur.

OPINION

AMES C.

This cause was argued and submitted at the same time as those of Becker v. Brown and Becker v. Dale, ante page 264, decisions in which are announced herewith. For a statement of facts in addition to such as is 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 purposes 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 was completely shattered, and he was under the doctor's care and considered himself in a very critical condition at the time. He expected Becker and Degan would take the cattle and pay the feed bill. He said he had written these men (meaning Becker and Degan) to come and get the cattle and fix it up and take them, that he was not able to do anything. After Brown and Dale had recovered possession of the cattle by replevin from Becker and Degan, they shipped them to...