Musser v. King

• Decision Date: 05 June 1894
• Citation: 40 Neb. 892,59 N.W. 744
• Parties: MUSSER ET AL. v. KING.
• Court: Nebraska Supreme Court

40 Neb. 892

59 N.W. 744

MUSSER ET AL.

v.KING.

Supreme Court of Nebraska.

June 5, 1894.

Syllabus by the Court.

1. In a replevin suit, by the holder of a chattel mortgage, to recover possession of the property described therein from a person other than such mortgagor, there is no presumption of law that the person who made such mortgage was at the time either the owner of or in possession of the property mortgaged.

2. In replevin, as in all other actions, the evidence should correspond with the allegations in the pleadings; and where a plaintiff in an action of replevin bases his right to the possession of the property claimed by reason of a special ownership therein or lien thereupon, he should set out in his petition the facts with reference to such special ownership or lien. Haggard v. Wallen, 6 Neb. 271, followed.

3. The plaintiff alleged in his petition that he was the owner, and entitled to the immediate possession, of certain property, and that the defendant unlawfully detained the same. The defendant answered by a general denial. The plaintiff proved that a third party, prior to the date of the suit, was in debt to one T., and gave him a note therefor, and executed a chattel mortgage on the property replevied, to secure said note; that the plaintiff was the owner of said note and mortgage by assignment from T. Plaintiff then offered said note and mortgage in evidence. Held, that the evidence did not tend to prove the issue.

4. A chattel mortgage, whether in writing or not, is a pledge of personal property to secure the promise of the mortgagor, or some one for whom he stands sponsor.

5. The legal title to property pledged by a chattel mortgage remains in the mortgagor until divested by foreclosure proceedings and sale in pursuance of the statute, and until the title of the mortgagor is thus divested, the mortgagee has merely a lien upon the property.

6. The first point of the syllabus in Adams v. Bank, 4 Neb. 370, is overruled.

Error to district court, Sheridan county; Alfred Bartow, Judge.

Replevin by M. P. Musser & Co. against John King. Judgment for defendant, and plaintiffs bring error. Affirmed.

Thos. L. Redlon, for plaintiffs in error.

C. H. Bane, for defendant in error.

RAGAN, C.

M. P. Musser & Co. brought a suit in replevin to the district court of Sheridan county against John King, and alleged in their petition that they were the owners of, and entitled to the immediate possession of, certain chattels, and that John King unlawfully detained possession of said chattels from them. To this petition, John King filed an answer consisting of a general denial. King had a verdict and judgment, and Musser & Co. bring the case here on error.

On the trial of the case, Musser & Co. proved that one William B. King, on the 16th of December, 1889, gave his note to one Nathan Tibbets, and to secure the same, at the same time, executed to Tibbets a chattel mortgage on the property involved in this suit; that said William B. King died insolvent on the 16th day of February, 1891; and that Tibbets had assigned the note, and the the mortgage securing the same, to Musser & Co. After this proof was made, Musser & Co. offered in evidence the note and chattel mortgage. John King objected to their introduction in evidence on the ground, among others, that no proper foundation was laid for their admission in evidence, and that they did not tend to prove the issue made by the pleadings. The district court sustained the objection, and excluded the note and chattel mortgage, to which ruling Musser & Co. took an exception. No other or further evidence was offered on the trial of the case. The only error assigned here is the ruling of the district court in excluding from the jury this note and mortgage. The issue in the case was the right of Musser & Co. to the immediate possession of the property replevied, and by their petition they predicated their right to the possession of the property on their ownership of the same.

In replevin, as in all other actions, the evidence should correspond to the allegations in the pleadings. If Musser & Co. based their right--as is probable--to the possession of this property on their ownership of the note and chattel mortgage, they should have so stated in their petition. In other words, they should have pleaded facts. If they claimed to be the actual owners of the property, an allegation that they were the owners of it was sufficient. If they claimed a special ownership in, or lien upon, the property, and predicated their right to the possession of the property on such special ownership or lien, the petition should have stated the facts in reference thereto. Haggard v. Wallen, 6 Neb. 271. The note and mortgage offered did not tend to prove that Musser & Co. were either the owners of, or entitled to the possession of, the property. There was no evidence offered showing that William B. King was either the owner or in possession of this property at the time he mortgaged it to Tibbets. The law, in the absence of all evidence on the subject, will not indulge the presumption that one who made a mortgage upon chattels was either the owner of, or in possession of, such property, at the time he made such mortgage, when the holder of such mortgage seeks to recover possession by replevin of such property from a third party. Everett v. Brown, 64 Iowa, 420, 20 N. W. 743;Warner v. Wilson, 73 Iowa, 719, 36 N. W. 719;Gibbs v. Childs, 143 Mass. 103, 9 N. E. 3. The petition in this case was doubtless framed upon the theory that the mortgagee of chattels is the owner of the legal title thereto, and in Adams v. Bank, 4 Neb. 370, it was so decided. An examination of that case, however, shows that the point was not necessary to a decision of the case. The action was brought by a mortgagee of chattels, in possession thereof, to restrain a sheriff from levying upon and selling said chattels under an execution against such mortgagee, and the court held that the petition did not state such a case as authorized the interference of a court of equity to restrain the sale. There can be no question but that the conclusion reached was a correct one, but the other point stated in the first syllabus of the case, viz. “that a mortgage of chattels transfers to the mortgagee the whole legal title to the thing mortgaged,” was not involved in the case. This case, if not expressly, has, in effect, been many times overruled by the decisions of this court; and we think it is the almost universal understanding of both the bench and the bar of the state that the mortgagee of chattels acquires only a lien upon the mortgaged property, and not the legal title thereto, by virtue of such mortgage. That the interest of a mortgagee in chattels is that of a mere lien has been frequently recognized by this court. In Tomkins v. Batie, 11 Neb. 147, 7 N. W. 747, it was held that “a mere tender of the amount secured by a chattel mortgage to the creditor on the date fixed for the payment, although not accepted nor kept good, released the property from the lien of the mortgage.” This case was reaffirmed in Knox v. Williams, 24 Neb. 630, 39 N. W. 786. In Gillilan v. Kendall, 26 Neb. 82, 42 N. W. 281, the court said: “The mortgagor of chattels, until foreclosure, possesses a beneficial interest in the property mortgaged, and will give a good title by a sale of such property to one who purchases...