Peckinbaugh v. Quillin

• Decision Date: 25 April 1882
• Citation: 12 N.W. 104,12 Neb. 586
• Parties: A. PECKINBAUGH, T. C. HOYT, AND GEORGE E. TAYLOR, PLAINTIFFS IN ERROR, v. ALICE QUILLIN, DEFENDANT IN ERROR
• Court: Nebraska Supreme Court

12 N.W. 104

12 Neb. 586

A. PECKINBAUGH, T. C. HOYT, AND GEORGE E. TAYLOR, PLAINTIFFS IN ERROR, v. ALICE QUILLIN, DEFENDANT IN ERROR

Supreme Court of Nebraska

April 25, 1882

ERROR to the district court for Richardson county. On trial there before WEAVER, J., Quillin had judgment, and defendant brought cause here for review on a petition in error.

AFFIRMED.

T. C Hoyt and C. Gillespie, for plaintiff in error.

A Schoenheit and E. W. Thomas, for defendant in error.

OPINION

LAKE, CH. J.

The petition states a good cause of action for the conversion of the property in question, and the several demurrers to it were properly overruled. No reason in support of either of said demurrers is given by counsel, and we will not discuss them. It is claimed that the court erred in striking out a part of the answer.

The action was brought to recover damages alleged to have been sustained by the plaintiff below as mortgagee of personal property, which the defendants below had converted to their own use. As to the fact of conversion it was answered, in substance, that the mortgage was fraudulent as to the creditors of John Quillin, the mortgagor, of whom the defendant Peckinbaugh was one. That the alleged conversion consisted merely of an attachment and sale of the property in satisfaction of a debt due from said John Quillin to said Peckinbaugh, in which proceedings the defendants, Hoyt and Taylor, severally acted in the capacity of attorney and constable. It was also answered, in substance, and this is what was stricken out, that only the interest of the mortgagor was sold, and that the whereabouts of the property was well known to the plaintiff when she brought her action for the conversion. These averments were entirely immaterial. But even if they were material there would be no just ground of complaint, for the reason that substantially the same statements are made in the amended answer and there stand without objection. The theory of the plaintiffs in error upon this branch of the case seems to be that, because the property was still accessible to the mortgagee, and could have been replevied by her from the purchasers under the attachment sale, she was bound to pursue that course for redress. In this however we think they are mistaken. She had her election of remedies and could either replevy the property from the several purchasers, or recover its value in an action for the conversion. Jones on Chattel Mortgages, 556. Eggleston v. Mundy, 4 Mich. 295. Our ruling upon this point is a sufficient answer to several other similar questions raised during the trial as to the admissibility of certain evidence, and upon the charge to the jury.

The claim of the plaintiffs in error that the mortgagor had an interest in the mortgaged property subject to sale on execution, and therefore attachable, cannot be sustained. In Jones on Chattel Mortgages, 556, it is said that: "It is only when the mortgagor has a certain ascertained right of possession for a definite period that an execution can be levied upon his interest. A mere equity of redemption, or a mere permissive possession, which the mortgagee may terminate at his pleasure, whenever he consider it necessary for his security, is not the subject of a levy and sale except by virtue of some statute. After default, when the mortgagee * * has the right to take possession and sell, the mortgagor's interest cannot be levied upon, * * there is not left in the mortgagor such a possessory right or interest as is capable of being seized and sold under execution against him; and the rule is the same although the mortgagor be allowed to remain in possession after the default, for in judgment of law he is in possession merely...