Gates v. Parrott
| Decision Date | 17 March 1891 |
| Citation | 48 N.W. 387,31 Neb. 581 |
| Parties | D. J. GATES v. S. V. PARROTT ET AL |
| Court | Nebraska Supreme Court |
ERROR to the district court for Boone county. Tried below before HARRISON, J.
REVERSED AND REMANDED.
J. E Philpott, and S. R. Anstine, for plaintiff in error, cited as to the agister's lien: Guthman v. Kearn, 8 Neb. 502.
Matt. Miller, contra.
This is an action in replevin brought by the plaintiff in error to recover the possession of thirteen head of cattle, two of which the plaintiff claims to be the owner of, and he asserts the right to possession of the other eleven head by virtue of an agister's lien for feed and keeping.
In the district court the verdict of the jury was for the plaintiff as to the two head, and in favor of the defendants as to the remainder of the cattle.
The proof shows that John A. Westover and James S. Armstrong were at one time partners engaged in business under the firm name of Armstrong & Westover, and at the time the partnership was dissolved the firm owned certain personal property, including the eleven head of cattle in controversy, which remained undivided. On the 16th day of January, 1885, after the firm had ceased to do business, John A. Westover executed in the firm name of Armstrong & Westover a note for $ 900 to Nelson Westover and gave a chattel mortgage, in the name of the firm, upon the eleven head of cattle and other property to secure the payment of the note. Subsequently Nelson Westover assigned the note and mortgage to one Henry E. Lewis, who placed it in the hands of his attorney to foreclose. James P Starring took a portion of the cattle replevied in this case under the mortgage and turned them over to the plaintiff for feed and care until the day of sale.
Afterward, on the 24th day of December, 1886, the district court of Boone county, in a cause pending therein wherein James S. Armstrong was plaintiff and Henry E. Lewis, Nelson Westover, James P. Starring, and John A. Westover were defendants, entered a decree that the note and mortgage were null and void, canceled the same and perpetually enjoined the sale of the property described in this mortgage.
On the 22d day of February, 1887, the defendant Frank Miller, as constable, levied an execution issued out of the county court of Boone county, on a judgment in favor of the Schuyler National Bank against Armstrong & Westover, upon the property in suit, took the same from the possession of the plaintiff and placed the cattle in the care and custody of the defendant S. V. Parrott. The following day this action was brought.
The judgment of the lower court, in so far as it is in favor of the plaintiff, is clearly right. The undisputed evidence shows that the plaintiff, at the commencement of the suit, was the general owner of two of the cattle, and was entitled to their possession. They were levied upon by the officer through a mistake, he supposing that they belonged to Armstrong & Westover.
Of the remaining eleven head that were replevied, the proof shows that two of them were delivered to the plaintiff by John A. Westover, under a contract to feed and care for the same, on the day the mortgage was made to Lewis. The plaintiff claims an agister's lien for feed furnished and care bestowed upon the entire eleven head.
Sec 28, art. I, ch. 4, Comp. Stats. 1887, reads as follows: "When any person shall procure, contract with, or hire any person to feed and take care of any kind of live stock, it shall be unlawful...
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