Loeb v. Milner

• Decision Date: 09 March 1887
• Citation: 32 N.W. 205,21 Neb. 392
• Parties: LOEB AND ANOTHER v. MILNER.
• Court: Nebraska Supreme Court

21 Neb. 392

32 N.W. 205

LOEB AND ANOTHER

v.MILNER.

Supreme Court of Nebraska.

March 9, 1887.

Syllabus by the Court.

Under the act of 1867, in foreclosing a chattel mortgage by sale of the property, such sale is to take place in the county where the mortgage was first recorded, or in any county where the property may have been removed by consent of parties, and in which the mortgage is duly recorded. Under the act of 1879 the proper filing of a chattel mortgage takes the place of recording; but to authorize a sale under the statute, where the property has been removed by consent of parties into a county other than that where the mortgage was first filed, the mortgage must be duly filed in the county where sale is to take place.

A sale under the statute by the mortgagee, by which he fails to comply with any essential requirement of the statute, will render him liable to the mortgagor for the damages which the latter may thereby sustain.

A provision in the mortgage that the mortgaged property may be sold in a county other than that in which the mortgagor resides, does not waive the statutory requirement that the mortgage is to be filed in the county where the sale is to take place.

A provision in a mortgage, that the mortgagee may take possession of the property at any time he feels insecure, and advertise and sell the same, does not authorize him to apply the proceeds to the payment of a note not then due.

Error from Adams county.

Dilworth, Smith & Dilworth, for plaintiffs.

J. B. Cessna and Ragan, McDonald & Shallenberger, for defendant.

MAXWELL, C. J.

In June, 1885, the defendant in error filed his petition in the court below, stating that on the second day of May, 1882, he became indebted to the plaintiffs in error in the sum of $280, and delivered to them two notes,--one for $150, due November 10, 1882, and one for $130, due November 1, 1883, each drawing interest at 10 per cent.; that to secure the payment of said notes he made a chattel mortgage on one brown horse mule, one bay horse mule, one black mare, one roan mare, one second-hand Studebaker wagon, one set of harness, one white cow, one roan cow, one roan heifer, and one white heifer; at the date of making said note and mortgage he resided in Webster county, Nebraska, and the property was in said Webster county, and he resided there, and said property remained there until the happening of the grievances hereafter mentioned; that the mortgage was filed in the county clerk's office of Webster county, and in no other county; that on December 10, 1882, he paid the plaintiffs in error, to be applied on the first note, $110, which left a balance due of $49.37 on the first note, and the second note of $130, due November 1st; that on the thirteenth day of December, 1882, they, without any justifiable cause, took possession of the above property, of the value of $700, and carried the same away from said Webster county, into Adams county, and wrongfully, without his consent, converted it to their own use; that they kept said property, and the proceeds thereof, to the value of $700, when he was only indebted to them in the sum of $180, and defendants are liable, to-wit, in the sum of $520; for which, with costs, he prays judgment.

The plaintiffs in error filed an answer to said petition, stating: “(1) That they deny each and every allegation therein contained. (2) That on or about the second day of May, 1882, at the special instance and request of the defendant in error, they sold and delivered to him one brown horse mule and one bay horse mule of the value of $280, which were sold on credit, and was evidenced by two promissory notes, dated May 2, 1882,--one for $150, due on or before November 10, 1882, and one for $130, due on or before November 1, 1883, drawing interest at 10 per cent. from date until paid; and to secure the payment of said notes, he gave them a chattel mortgage upon the following described property, to-wit: One brown horse mule, one bay horse mule, one black mare, one roan mare, one second-hand Studebaker wagon, one set double harness, one white cow, one roan cow, one roan heifer, one white heifer; that said mortgage was filed in the county clerk's office of Webster county on the third day of May, 1882. (3) That on the second day of May, 1882, the defendant in error became indebted to one G. H. Pratt in the sum of $39.45, which was evidenced by note of said defendant in error, due on the second day of November, 1882, with interest at 10 per cent., and to secure said note he gave a chattel mortgage to said Pratt on one red and white cow, one white cow, one yearling heifer, one white yearling heifer; and said mortgage was duly filed on the third day of May, 1882, in Webster county. And they allege that the said G. H. Pratt was about to foreclose said mortgage, and that for a valuable consideration they guarantied and did assume to pay the said debt of G. H. Pratt. (4) They further allege that defendant in error paid to their agent the sum of $150, and that the said sum of money was applied in the payment of said Pratt debt, and the expenses of collecting the same, and that the balance thereof was applied upon the payment of the notes held by them against the defendant in error. (5) They further allege that default was made in the conditions of the mortgage given by the defendant in error to them, and that they felt unsafe and insecure, and that on or about the twentieth of January, 1883, they took possession of the property mentioned in the mortgages, and, after having duly advertised the same for sale for at least 20 days, they did, on the twenty-first day of February, sell said property, or so much thereof as they got possession of, for the sum of $329.25; that the debt, interest, costs, expenses, of taking and feeding the said property amounted at that time to $318.04, excluding the payment of the Pratt note, and all payments previously made by him, leaving in their hands the sum of $11.21, which sum they then and there tendered and offered to pay to said defendant in error, but he refused to receive the same; that they have always been ready and willing to pay him, and now are ready to pay the same, and hereby tender him, and pay in to this court for his use, the said sum of $11.21. They therefore plead not guilty to the charge of the petition, and pray that they may recover their costs in this action.”

To which answer there was attached, as Exhibits A and B, the two mortgages set forth in said answer. In Exhibit A the following condition was made:

“And I, the said S. L. Milner, do covenant and agree to and with the said Loeb & Hirsch that in case of default made in the payment of the above-mentioned promissory notes, or any part thereof, or in case of my attempting to dispose of, or remove from said county of Webster, the aforesaid goods and chattels, or any part thereof, or if at any time the said mortgagee, his heirs or assigns, should feel unsafe or insecure, then and in that case it shall be lawful for the said mortgagee or his assigns, by himself or agent, to take immediate possession of said goods and chattels wherever found, the possession of these presents being sufficient authority therefor, and to sell the same at public action, or so much thereof as shall be sufficient to pay the amount due, as the case may be, with all reasonable costs pertaining to the keeping, advertising, and selling said property, together with the sum of $______ as liquidated damages for non-fulfillment of the contract; the money remaining after paying said sums, if any, to be paid on demand, and to the party of the first part; said sale to take place in Hastings, in the county of Adams and state of Nebraska, after giving at least twenty days' notice of such sale by advertisement published in some newspaper printed in the county in which the sale is to take place, or, in case no newspapers are printed therein, by posting up notices in at least five public places in said county, two of which shall be in the precinct where the mortgaged property is to be offered for sale.

Witness my hand and seal this second day of May, 1882.

S. L. MILNER.”

A trial was had to a jury, with a verdict for defendant in error. At the trial the following proceedings were had: John Milner, called and sworn on the part of the defendant in error, testified that he was the son of the defendant in error; that he was acquainted with the property his father mortgaged to Loeb & Hirsch; that Thomas M. Abbott, in December, 1883, took away a big mule, also a brown horse mule, one roan mare, and a wagon, a double set of harness, one roan or spotted cow, one white heifer. He was acquainted with and raised with the stock. The brown mule was worth about $135 or $140. The bay horse mule was worth about the same. The wagon was worth about $30 or $40; the harness, probably $10 or $15; the roan cow, about $50; the...