Fines v. Bolin

• Decision Date: 11 April 1893
• Citation: 36 Neb. 621,54 N.W. 990
• Parties: FINES v. BOLIN.
• Court: Nebraska Supreme Court

36 Neb. 621

54 N.W. 990

FINES

v.BOLIN.

Supreme Court of Nebraska.

April 11, 1893.

Syllabus by the Court.

1. A mortgage upon growing corn is not constructive notice to a dealer in grain who in good faith, in open market, purchases such corn from the mortgagor after the same has been husked by the latter, and placed in a pile or crib; but the rule does not prevail where the person who assisted in husking the corn afterwards becomes the purchaser, while it is yet in the same pile or crib, and receives it there, having at the time actual knowledge that it is the same corn he helped harvest. In such case the purchaser will take the corn subject to the lien of the mortgage.

2. Where corn in a single pile or crib, owned by two tenants in common, is in the exclusive possession of one of such owners, but both being equally entitled to the possession thereof, the other joint owner, if his cotenant refuses a division when properly demanded, may recover his portion of the grain by an action of replevin.

Error to district court, Hall county; Harrison, Judge.

Action of replevin by John W. Fines against Tucker Bolin to recover the possession of a quantity of corn. There was judgment for defendant, and plaintiff brings error. Reversed.W. H. Thompson, for plaintiff in error.

Dryden & Main and W. A. Prince, for defendant in error.

NORVAL, J.

The plaintiff in error was plaintiff in the court below. The action was to recover the possession of a quantity of corn undivided. The property was taken by the sheriff under the replevin writ, and delivered to the plaintiff. Upon the trial the jury returned a verdict for the defendant, upon which judgment was entered. It appears from the bill of exceptions that the plaintiff is the owner of a farm of 160 acres in Hall county, which he leased for the season of 1889 to the defendant and one Oscar Dewitt, jointly. By the terms of the lease, plaintiff was to receive, as rent, two fifths of all the crops, and the tenants were to have the remaining three fifths thereof. About 55 or 60 acres were planted to corn, and the remainder of the land was put in oats. A few days after the corn was planted, Dewitt gave the plaintiff a chattel mortgage upon a threshing machine, and on his one half of the undivided three fifths of said crop of corn, to secure the payment of an indebtedness of $159.55 of Dewitt's to the plaintiff, which mortgage was duly filed in the county clerk's office on the day it was executed. There was testimony introduced on the trial tending to show that the defendant was present at the time the mortgage was taken, and that he had actual knowledge of its contents. The defendant, while admitting he was in the office of the notary when the mortgage was drawn, denies positively that he had any notice of what property was described therein. It is undisputed that, after the corn crop had been matured, plaintiff's share was gathered by the tenants, and delivered to him. The other three fifths of the corn, amounting to about 1,900 bushels, was husked by Bolin and Dewitt and piled upon the ground in a single heap, but there was never any division made of the corn belonging to the tenants. Bolin had also placed in the same pile 250 bushels of corn owned by him, which was raised on lands belonging to one Robbins. On the 16th day of December, 1889, Dewitt sold his interest in the corn and some millet hay to the defendant, and executed a bill of sale for the same. Subsequently, Bolin refused to deliver to plaintiff any portion of the corn covered by said chattel mortgage, and this action was instituted, plaintiff obtaining under the writ 1,051 bushels of said corn.

Objection is made to the 5th, 6th, and 7th paragraphs of the court's charge to the jury, which are as follows: “(5) The jury are instructed that the filing of a chattel mortgage upon personal property in the office of the clerk of the county where the mortgagor resides, is notice to all parties that there is such mortgage, and persons who buy the same take such property subject to such mortgage. You are instructed that the above is the general rule of law; and you are further instructed that if a mortgage is given upon a growing crop of grain, which is afterwards husked or harvested and placed in piles or cribs, that the filing of the mortgage in the office of the county clerk will not be constructive notice of such mortgage, and third parties who purchased it after it is husked and placed in the piles or crib, without actual notice of such mortgage,...