Nelson v. Gary

• Decision Date: 29 May 1884
• Citation: 19 N.W. 630,15 Neb. 531
• Parties: HENRY W. NELSON, APPELLANT, v. JESSE GAREY, APPELLEE
• Court: Nebraska Supreme Court

19 N.W. 630

15 Neb. 531

HENRY W. NELSON, APPELLANT, v. JESSE GAREY, APPELLEE

Supreme Court of Nebraska

May 29, 1884

APPEAL from Valley county. Heard below before TIFFANY, J.

Reversed.

Charles E. Magoon, for appellant, cited: Giddings v. Sears, 115 Mass. 505. Lininger v. Raymond, 12 Neb. 25. Mussey v. Noyes, 26 Vt. 462. Curtis v Leavitt, 15 N.Y. 197. Davis v. Anderson, 1 Kelley, 176. Harkraker v. Leiby, 4 Ohio St 602. Doremus v. O'Harra, 1 Id., 45. Lyon v McIlvaine, 24 Iowa 9. Dodd v. Hills, 21 Kan. 709 Bates v. Coe, 10 Conn. 280.

Coffin & Grimes and Martz & Williams, for appellee, cited: Burrill on Assignments, 220-224. Atkinson v. Jordan, 5 Ohio 293. VanPatten v. Burr, 3 N. W. R., 114.

OPINION

REESE, J.

The question in this case is, whether there was sufficient evidence before the district court to justify it in holding that a certain chattel mortgage executed by the assignor to the assignee, on the same day on which a general assignment was made, was in fact a part of the general assignment and that the two were one and the same instrument.

Section 5 of the act of 1877, under which this assignment was made, provides that: "All assignments of property in trust which shall be made by any debtor on account of inability at the time of the assignment to pay his debts, to prefer one or more creditors (except for the payment of wages of labor) shall be held and construed to inure to the benefit of his creditors in proportion to their respective demands, and all such assignments shall be subject, in all respects, to the provisions of this act: Provided, That the claims of laborers thus preferred shall not severally exceed the sum of one hundred dollars." Comp. Stat., chap. 6.

By this section it is very apparent that if the deed of assignment contains any provisions by which preferences are made, those provisions are void and the assignee will be treated as holding all the assigned property in trust for all the creditors, the proceeds to be distributed among them pro rata. Therefore if it is true that the chattel mortgage and the assignment can, in the light of the facts, be considered as "one and the same instrument," then the decision of the district court is correct. There was no testimony taken as to the principal facts upon which the order was based and we are left wholly to the records from which to draw our conclusions. These records consist mainly in the various proceedings in the matter of the assignment. Taking the evidence as it is, we find that on the 9th of January, 1882, Nelson, the appellant, signed a stay bond for Harter to secure a judgment for $ 332.91 in favor of A. Stacy, and on the 13th day of January, 1882, he became surety for Harter on certain promissory notes payable to Meyer & Schurman for $ 604.93, and that at the time of signing said bond and notes Harter agreed to secure him from all loss or damage resulting from becoming such surety. At these times Nelson had no knowledge of any intention on the part of Harter, if any existed, to make an assignment. On the 14th day of January of the same year, and prior to the assignment Harter executed to Nelson the chattel mortgage in question on a part of his property, and which was filed in the office of the county clerk on the same day at one o'clock and fifty minutes in the afternoon. On the same day Harter executed a general assignment of all his property to Nelson for the benefit of his creditors. This assignment was filed for record at two o'clock and ten minutes in the afternoon of that day. Nelson immediately took possession of all the property. The inventory shows that there was sufficient property to pay all the debts, but a large portion of it was afterward destroyed by fire. At the time of the execution of the mortgage the mortgaged property was separated from the other property and sufficiently described and identified by the mortgage.

It must be conceded that if the chattel mortgage was executed in good faith in pursuance of an agreement to secure Nelson against loss growing out of his suretyship for Harter, prior to the making of the assignment and without the intention to divert the property from an assignment then agreed to be made, the decision of the district court that "the mortgage and the assignment are one and the same instrument" is incorrect. But if the assignor...