Fitzgerald v. Andrews

• Decision Date: 16 November 1883
• Citation: 17 N.W. 370,15 Neb. 52
• Parties: FITZGERALD v. ANDREWS.
• Court: Nebraska Supreme Court

15 Neb. 52

17 N.W. 370

FITZGERALD

v.ANDREWS.

Supreme Court of Nebraska.

Filed November 16, 1883.

Error from Nemaha county.

J. H. Broady, for plaintiff.

Osborn & Taylor, for defendant.

LAKE, C. J.

This is a petition in error from Nemaha county. The action in the court below was in replevin, to recover possession of a lot of household goods, consisting of one stove and furniture, twenty pairs of blankets, fifteen quilts, and some dishes and table furniture, to which the plaintiff claimed he was entitled under a bill of sale made to him by one Dennis O'Leary, on the twenty-seventh of August, 1881, to secure the payment of the sum of $50 for money borrowed. That this was the object of the bill of sale was proved beyond all doubt. After the giving of this bill of sale O'Leary continued to hold possession of the goods until the seventh of October following, when the plaintiff, by his agent, took them into his own custody. Whereupon the defendant, Andrews, caused them to be seized under an execution that day issued on a judgment in his favor against O'Leary. The question in the court below, therefore, was simply which had the superior right, the plaintiff with his bill of sale or the defendant under his execution?

In support of the finding and judgment of the district court, it is urged by defendant's counsel that the bill of sale being in effect simply a chattel mortgage, and not filed with the county clerk, as the law requires, to make it effective as to creditors, was void as to him, and the property covered by it liable to seizure in satisfaction of his judgment. Doubtless the property would have been liable to be so taken while it remained in the hands of O'Leary, notwithstanding the formal sale to the plaintiff. During all of that time the sale, although for a good consideration, was of no effect as against O'Leary's creditors, who might acquire liens thereon, by attachment or execution, unless protected under a claim of exemption.

But, as between O'Leary and the plaintiff, the sale was perfectly good without being so filed, although void as to the creditors of the latter. Beckcr v. Anderson, 6 Neb. 499; Conchman v. Wright, 8 Neb. 1;Gregory v. Whedon, Id. 373; [S. C. 1 N. W. REP. 309.]

The defendant's judgment, however, was not of itself a lien on the property, nor could it become such except by the levy of an execution issued upon it. But before the defendant's execution was levied, and a lien thus obtained, the plaintiff had perfected his own by taking possession of the property, and thereby obviated the necessity of giving the statutory notice to O'Leary's creditors, by filing his bill of sale of what his interest in the property was. With the property in the plaintiff's possession, or in that of his agent, his right to it as a security, which before was in peril of seizure by creditors, was made secure, for actual possession of personal property is notice to the world of the possessor's right to...