Midland State Bank v. Kilpatrick-Koch Dry-Goods Co.
| Decision Date | 08 April 1898 |
| Citation | 74 N.W. 837,54 Neb. 410 |
| Parties | MIDLAND STATE BANK v. KILPATRICK-KOCH DRY-GOODS CO. ET AL. |
| Court | Nebraska Supreme Court |
1. An instrument signed by the granting party thereto, not dated, which is taken by the grantee named therein under an agreement, to be retained until such time as the grantor notifies the grantee of a contingency, it being of the terms of the agreement that on such notification the instrument is to be completed and filed as a mortgage or lien on goods or chattels, does not become a completed mortgage until the grantor takes the action contemplated by the agreement.
2. As a general rule, and in absence of agreement to the contrary, the lien of a chattel mortgage on a stock of merchandise attaches to the articles in stock at the time of the execution of the instrument, and not to future additions to the stock.
Error to district court, Douglas county; Blair, Judge.
Replevin by Midland State Bank against the Kilpatrick-Koch Dry-Goods Company and others. From a judgment entered on a verdict directed for defendants, plaintiff brings error. Affirmed.McClanahan & Halligan, for plaintiff in error.
W. W. Morsman and R. B. Montgomery, for defendants in error.
On the 20th of September, 1893, Oliver L. Templeton was engaged in business at South Omaha as a retail dealer in general merchandise, and on that date executed and delivered to the Kilpatrick-Koch Dry-Goods Company a chattel mortgage on his stock of merchandise and store furniture, securing the payment of $2,905.78 due the company for goods sold and delivered to him by it. The balance of indebtedness on account was figured and evidenced by a promissory note of even date with the mortgage to which we have just referred, taken as security for the payment of the debt, and at the same time executed a mortgage on the property in favor of the Packers' National Bank of South Omaha, to secure the payment of an indebtedness to it. This latter mortgage was, by its terms, subject to the one in favor of the dry-goods company. The last-mentioned company filed its mortgage in the proper public office on the day of its execution and delivery, and immediately took possession of the property, and proceeded with a statutory foreclosure of its lien, and realized from the sale of the goods, etc., of date October 20, 1893, the sum of $3,500. The mortgage to the Packers' National Bank was also filed in the office of the county clerk, of date September 20, 1893, the day of its execution. Subsequent to the assumption of possession of the mortgaged property by the dry goods company, the Midland State Bank caused this, an action of replevin, to be instituted in the district court of Douglas county, and the property was taken under the writ, but, the plaintiff failing to execute the necessary bond, was returned to the dry-goods company. The claim of the bank of right of possession of the property in suit was predicated on its ownership, as assignee of W. G. Templeton (a brother of O. L. Templeton, the merchant and owner of the property), of two notes and an asserted chattel mortgage to secure their payment, also as the owner of a note running in terms to the plaintiff bank and a chattel mortgage as security for the payment of the debt of which the note was evidence, both of which chattel mortgages were alleged to be subsisting liens prior and superior to the liens of the dry-goods company and Packers' National Bank. The latter came into the suit by intervention. Issues were joined, and, at the trial thereof before a jury, that body was given a peremptory instruction to return a verdict in favor of the dry-goods company and the Packers' National Bank. This the jury did, and judgment was in the due course of procedure rendered on the verdict.
Of the assignments of error in the petition presented in this proceeding on behalf of the Midland State Bank, the one urged is that in which the complaint is of the action of the court in instructing the jury as we have hereinbefore stated. The trial court excluded from the evidence the alleged mortgage to the plaintiff in error, and, in the condition of the record and pleadings in the case in this court, such instrument cannot enter into our consideration of the points discussed under the main subject of objection and argument,--the giving of the peremptory instruction.
As we view the record, one question to which considerable attention has been given by counsel for plaintiff in error in the brief filed--i. e. the fraudulent or bona fide character of the asserted chattel mortgage by the merchant to his brother as between the parties litigant--has no force for at least two sufficient reasons:
1. The instrument under which the plaintiff asked a remedy was signed without date. Its time of execution was alleged as of July 25, 1893; and it was of the testimony that it was signed August 12, 1893. Mr. O. L. Templeton, the merchant, the man who signed the...
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