Peters v. Parsons

• Citation: 24 N.W. 687,18 Neb. 191
• Parties: CLAUS PETERS, PLAINTIFF IN ERROR, v. ALBERT F. PARSONS, DEFENDANT IN ERROR
• Decision Date: 29 September 1885
• Court: Supreme Court of Nebraska

24 N.W. 687

18 Neb. 191

CLAUS PETERS, PLAINTIFF IN ERROR, v. ALBERT F. PARSONS, DEFENDANT IN ERROR

Supreme Court of Nebraska

September 29, 1885

ERROR to the district court for Lancaster county. Tried below before POUND, J.

Judgment reversed in part and affirmed in part, and judgment rendered against the plaintiff.

Charles O. Whedon, for plaintiff in error.

A. W Field, for defendant in error.

OPINION

MAXWELL, J.

This is an action of replevin brought by the defendant in error against the plaintiff to recover the possession of "one bay horse, one sorrel horse," in which he claims a special ownership by virtue of a chattel mortgage executed by one B. E. Glazier. It is alleged in the petition that the defendant (plaintiff in error) "wrongfully detains said property from the possession of this plaintiff," etc. It is also alleged that "prior to the commencement of this action the said plaintiff demanded possession of said property of defendant which said defendant refused and still refuses." The answer is a general denial. On the trial of the cause the jury found that the plaintiff below had a special ownership in the bay horse described in the petition, and that the value of the possession was the sum of $ 67.50. A motion for a new trial having been overruled, judgment was rendered on the verdict.

It appears from the evidence that in September, 1882, one Silas M. Clark, of Lancaster county, was the owner of the horses in question, and entered into a contract to sell the same to one B. E. Glazier for the sum of $ 160.

To obtain money to pay for them, and for other purposes Glazier, on the 26th of September of that year, executed a chattel mortgage upon the horses in question and other property to the defendant in error. In this mortgage the horses are described as follows: "One bay horse 8 years old, weight about 1,200; one sorrel horse 10 years old, weight about 1,000." The mortgage contains this allegation: "And I, the said mortgagor, do solemnly declare and represent unto the said mortgagee that I am lawfully possessed of said goods and chattels as of my own property, that the same are free and clear of all incumbrances for obtaining the above money."

The testimony shows that Glazier was at that time residing in Lancaster county, and that the property was within that county. Soon afterwards Glazier traded the horses in question to the plaintiff in error for a span of mules. This action was brought against him to recover the possession of the property; but as he had disposed of the sorrel horse before the action was brought the bay horse alone was taken under the order of replevin.

The first error relied upon by the plaintiff is, that the description of the horses in the mortgage is not sufficient to charge third persons with notice.

In Jordan v. Hamilton County Bank, 11 Neb. 499, 9 N.W. 654, the description of the property was as follows: "Two mules, one bay and one brown, aged eight years; one bay horse, age five years, one black mare, aged eight years. * * * Nine acres of growing wheat situated on sec. 35, town 12, range 6." This was held to be sufficient. In this case the description of the property in dispute is "one bay horse eight years old, weight about 1,200," of which the mortgagor was possessed. This certainly is sufficient to put a purchaser on inquiry, particularly where the mortgagor appears to have possessed but one horse of that color, and it is shown that Glazier was actually using the horse in question for some time before and at the time he traded the same to the plaintiff in error.

Objection is made that the age of the horse is shown to have been much greater than was stated in the mortgage, consequently calculated to mislead. The testimony tends to show that the horse in question was about twenty years of age. There is no proof that Glazier had been informed by Clark as to the age of the horse when he purchased him, nor that it was a material part of the description. The bay horse is shown to have weighed about 1,200 pounds at the time of the execution of the mortgage, and to have had a star in his forehead and "some white on his feet." As Glazier possessed no other bay horse, the description seems to be sufficient.

2. The testimony tends to show that Glazier made a contract...