Fitzgerald v. Meyer

• Decision Date: 13 December 1888
• Citation: 25 Neb. 77,41 N.W. 123
• Parties: FITZGERALD v. MEYER.
• Court: Nebraska Supreme Court

25 Neb. 77

41 N.W. 123

FITZGERALD

v.MEYER.

Supreme Court of Nebraska.

Dec. 13, 1888.

Syllabus by the Court.

1. Every sale made by a vendor of goods and chattels in his possession or under his control, unless the same be accompanied by an immediate delivery, and be followed by actual and continued change of possession of the thing sold, is presumed to be fraudulent, as against subsequent purchasers in good faith, unless it shall be made to appear on the part of the person claiming under such sale that the same was made in good faith, and without intent to defraud such purchasers; therefore, under our statute of frauds, the delivery or possession of property sold is not necessary to protect the purchaser as against subsequent purchasers, provided the purchase is shown to have been made in good faith.¹

2. By our statute, the retention of possession by the seller is at most only prima facie evidence of fraud, which may be rebutted by proof. Robison v. Uhl, 6 Neb. 328.

3. In all cases arising under our statute the question of fraud in a sale is one of fact, and not of law. Id.

4. If one or more of the paragraphs in the charge of the court to the jury misstates the law upon a material point, such error will not be cured by other paragraphs which state the law correctly. See Wasson v. Palmer, 13 Neb. 376, 14 N. W. Rep. 171.

Error to district court, Douglas county; GROFF, Judge.

Replevin by John Fitzgerald against Axel Meyer, to recover two mules. Judgment for defendant, and plaintiff brings error.Breckinridge & Breckinridge, for plaintiff in error.

W. J. Connell, for defendant in error.

REESE, C. J.

This was an action in replevin, instituted in the county court of Douglas county, from which it was appealed to the district court of said county, where a trial was had, resulting in a verdict and judgment in favor of defendant in error. Plaintiff in error, who was plaintiff below, brings the cause to this court by proceedings in error.

From the bill of exceptions it appears that on the 10th day of January, 1885, one J. G. Morrisey, who resided in Adair county, Iowa, was indebted to plaintiff in error in the sum of $150, to secure which he executed a chattel mortgage upon the property in dispute in this action, to-wit, one span of black horse mules. The mortgage was duly recorded in that county. Soon after its execution Morrisey removed from that state, taking the mortgaged property with him, without the knowledge or consent of the mortgagee. It also appears from the evidence that on the fifth day of May, 1885, Morrisey executed to plaintiff in error a bill of sale for certain property, including the mules in question, but that he retained the possession of the mules. Sometime after the execution of the bill of sale, Morrisey sold the property to John B. Furay, who in turn sold it to defendant in error. The purchase by Furay was in good faith, for value, and without notice of the existence of the chattel mortgage, or bill of sale. The mules, having been found in the possession of defendant in error, were replevied by plaintiff in error. While we find no direct testimony upon that point, yet perhaps it sufficiently appears that the bill of sale was executed in Hall county, in this state. Upon the trial the court gave to the jury, among others, the following instructions, on its own motion: “ Third. You are instructed that if you find that J. G. Morrisey executed to plaintiff a chattel mortgage upon the mules in question, in Iowa, and that the same was recorded there to secure a bona fide indebtedness to plaintiff, and the mules were, by Morrisey or any one else, removed from said state of Iowa, without the consent of the plaintiff, and brought to the state of Nebraska, the plaintiff did not thereby lose his mortgage lien, but could follow said property with his mortgage, and take the same in the state of Nebraska. Fourth. You are further instructed that if you find that the property in controversy was removed from Iowa to Nebraska, and that after its removal the plaintiff took a bill of sale of the mortgaged property, then it will be your duty to determine whether said property was taken in payment of the indebtedness from Morrisey to Fitzgerald; and if you find that it was taken in payment of the note and mortgage, and that there was not an immediate delivery, followed by an open and continued change of possession, and said bill of sale was not recorded, and that John B. Furay bought the same in good faith, without notice of Fitzgerald's claim, then you should find for the defendant. Fifth. You are further instructed that if you find that the plaintiff took the bill of sale on the mules in question in payment of the notes, and did not record the bill of sale, and that said transaction was not accompanied by an immediate and continued change of possession of the mules from Morrisey to Fitzgerald, that then you should find for the defendant.” Also the following instruction, asked by defendant in error: “The jury are instructed that if they find from the evidence in this case that the bill of sale of the mules in controversy, which has been received in evidence, was executed and delivered by Morrisey to Fitzgerald, and that it was the intention and purpose of said parties that the same was in settlement of the note secured by the mortgage, and that such transaction was not accompanied or followed by a delivery or change of...