Lininger v. Herron
| Decision Date | 25 November 1885 |
| Citation | 25 N.W. 578,18 Neb. 450 |
| Parties | GEORGE W. LININGER ET AL., PLAINTIFFS IN ERROR, v. NATHANIEL HERRON, SHERIFF, DEFENDANT IN ERROR |
| Court | Nebraska Supreme Court |
ERROR to the district court for Gage county. Tried below before BROADY, J.
Reversed and remanded.
L. W Colby and Hazlett & Bates, for plaintiffs in error.
L. M Pemberton, T. D. Cobbey, and Burke & Prout, for defendant in error.
In October, 1882, one J. B. Lininger, a son of Elizabeth Lininger and brother of George W. Lininger, the plaintiffs, was doing business at Wymore, in this state, and being in pressing need of money borrowed about $ 3,000 from George, giving his note therefor payable in 90 days. To secure this note J. B. executed to his brother a chattel mortgage on his stock of goods at Wymore. This mortgage was not filed for record until the 5th day of February, 1883. Prior to February 1st, 1883, J. B. Lininger had borrowed from his mother the sum of $ 1,800, upon which he was paying interest. Of this sum $ 800 had been in his possession for several years while $ 1,000 was a later loan. On the 1st day of February, 1883, J. B. Lininger executed to his mother a chattel mortgage upon his stock of goods to secure the sum of $ 1,800. This mortgage was filed for record on the 5th day of February, 1883. On the 7th of February, 1883, J. B. Lininger executed a bill of sale to the plaintiffs of all the goods, merchandise, fixtures, and chattels mentioned in the schedule which was attached to the bill of sale, the consideration expressed in the bill of sale being the sum of $ 5,000.
The plaintiffs by their agents then took possession of the store and goods and began selling the same in payment of the debts due the plaintiffs. Soon after this transfer the defendant, as sheriff of Gage county, levied a number of attachments, in the aggregate about $ 3,000, in favor of creditors of J. B. Lininger, on the goods in question. The plaintiffs thereupon brought an action of replevin and recovered the possession of the property. On the trial of the action in replevin the court found the issues in favor of the defendant and that he had a lien by virtue of the attachment upon the property in question in the sum of $ 3,385.38.
The principal error relied upon is, that the judgment is against the weight of evidence. There is no claim that the attaching creditors were induced to give J. B. Lininger credit upon the faith of his ownership of the property covered by the mortgage to George W. Lininger, and that if said mortgage had been filed for record they would not have given or extended credit to J. B. Lininger. This plea, in any event, would be available only to subsequent creditors who trusted him on the faith of the property in his possession. But that question does not arise in this case. Nor does the question of the validity of the chattel mortgages arise, as they were canceled and the goods delivered to the plaintiffs before the levies under the attachments were made, and they are to be considered only for the purpose of showing the nature of the transaction. The only questions that properly arise in the case are, 1st, Whether or not the plaintiffs were bona fide creditors of J. B. Lininger; and 2d, Was the property transferred to them to hinder or defraud the creditors of J. B. Lininger?
Upon the first point it is sufficient to say that all the testimony tends to show that plaintiffs actually loaned to J B. Lininger in the aggregate the sum of $ 4,800. All but about $ 400 of this sum was in cash, and none of it on the 7th day of February, 1883, had been repaid. The checks of G. W. Lininger on the Omaha National Bank in favor of J. B. Lininger for about $ 2,600, and in favor of Lininger & Metcalf for about $ 400 on a debt of J. B., due to them, are in the record. It also appears that at that time J. B. represented to his brother that his stock would invoice $ 12,000 or $ 15,000. The actual invoice of the stock taken about February 1st, 1883, was $ 9,663.00 with notes and accounts to the amount of $ 1,700, and as there seems to have been no considerable purchase of...
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