Fitzgerald v. Andrews
| Decision Date | 16 November 1883 |
| Citation | 17 N.W. 370,15 Neb. 52 |
| Parties | JOHN FITZGERALD, PLAINTIFF IN ERROR, v. B. BELL ANDREWS ET AL., DEFENDANTS IN ERROR |
| Court | Nebraska Supreme Court |
ERROR to the district court for Nemaha county. Tried below before DAVIDSON, J.
REVERSED AND REMANDED.
J. H Broady, for plaintiff in error.
1. The property covered by the bill of sale and replevied was absolutely exempt from judgment creditors by force of the statute without any action of any one to give the exemption effect. Comp. Stat., p. 600, § 530. Maxwell Justice Pr. pp. 98, 99. William v. Golden, 10 Neb. 434.
2. The property being exempt was not the subject of a fraudulent sale as to creditors. Boggs v. Thompson, 13 Neb 408. Derby v. Weyrich, 8 Neb. 174. Thompson on Exemptions, § 411.
Osborn & Taylor, for defendants in error.
1. Record shows that action was commenced in county court; does not show that O'Leary was a bona fide resident of the county or state, or that he ever claimed to be; and we claim that the conveyance is, if anything, a chattel mortgage.
2. On right of plaintiff to maintain action see Haggard v. Wallen, 6 Neb. 272. Williams v. West, 2 Ohio St. 85. Goodman v. Kennedy, 10 Neb. 273.
3. Right given by statute of exemption is a personal privilege, and may be waived by debtor. Thompson, § 438. Angell v. Johnson, 2 N. W. R., 435. Haven v. Melogue, 9 Ind. 196. Brown v. Leitch, 31 Am. Rep., 43. Conlee v. Chilcote, 25 Ohio St. 320. Butt v. Green, 29 Id., 667.
4. Not being placed on record the mortgage is void. Becker v. Anderson, 11 Neb. 494. Philips v. Reitz, 16 Kan. 396.
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 27th of August, 1881, to secure the payment of the sum of fifty dollars 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 7th of October following, when the plaintiff, by his agent, took them into his own custody. Thereupon, 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. Comp. Stat., Chap. 32, Sec. 14.
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. Becker v. Anderson, 6 Neb. 499. Conchman v. Wright, 8 Neb. 1. Gregory v. Whedon, 8 Neb. 373.
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 it. The controversy between the parties respecting this property is, therefore, really one of priority of lien, in which the evidence shows beyond all doubt that the plaintiff has the advantage of a few hours.
The filing of a chattel mortgage is required only where possession of the property is retained by the mortgagor. And, to enable a creditor to...
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