M. Randall v. Persons
| Decision Date | 08 November 1894 |
| Docket Number | 5418 |
| Citation | 60 N.W. 898,42 Neb. 607 |
| Parties | M. RANDALL v. CARL M. PERSONS |
| Court | Nebraska Supreme Court |
ERROR from the district court of Hall county. Tried below before HARRISON, J.
REVERSED AND REMANDED.
M Randall and Darnall & Kirkpatrick, for plaintiff in error.
Charles G. Ryan, contra.
This is an action of replevin brought in the district court of Hall county by Carl M. Persons against M. Randall. Persons alleged in his petition that he was the owner of and entitled to the immediate possession of the property replevied, the same being "an office chair." The answer of Randall was a general denial. Persons had a verdict and judgment, and Randall brings the case here for review.
The evidence in the bill of exceptions establishes and tends to establish, the following facts: Persons sold the property and other property to one Meth, taking the latter's note for the purchase price of the property and a chattel mortgage thereon to secure the payment of the note. This mortgage, or a copy of it, was duly filed in the office of the county clerk of Hall county, where the property was situate. Persons afterwards sold and indorsed Meth's note to a bank in Grand Island, and the note not being paid at maturity, the bank sued Meth, and Persons as an indorser thereon, and obtained judgment against them for the amount of the note in suit. Persons then paid the amount of this judgment and interest to the bank, and he and Meth entered into an agreement, the substance of which was that the contract of sale of the property between Meth and Persons should be and was rescinded, the title to the property reinvested in Persons, and Meth was to pay Persons a small sum of money. The property, however, was not at this time removed from the place of business or office of Meth, where it was when the agreement between him and Persons was made. Soon after this time an execution was levied upon this property by one of Meth's judgment creditors, and the property in controversy, and other property, was, by the consent of Meth and the execution creditor, sold to Randall, he paying the agreed price thereof to the attorney of the execution creditor. We say that the evidence in the record establishes, and tends to establish, the foregoing facts, for the evidence as to nearly all of these facts was conflicting.
1. On the trial to the jury Persons, against the objection of Randall, was permitted to read in evidence to the jury the note and chattel mortgage executed by Meth to him upon the property in controversy, and this is the first error assigned here. It is to be remembered that Persons, in his petition, alleged in himself an absolute ownership of this property. The legal title to property pledged by a chattel mortgage remains in the mortgagor until divested by foreclosure proceedings and sale in pursuance of law, and until the title of the mortgagor is thus divested, the mortgagee has merely a lien upon the property. In replevin, as in all other actions, the evidence should correspond to the...
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