Price v. McComas

• Decision Date: 09 February 1887
• Citation: 21 Neb. 195,31 N.W. 511
• Parties: PRICE AND ANOTHER v. MCCOMAS.
• Court: Nebraska Supreme Court

21 Neb. 195

31 N.W. 511

PRICE AND ANOTHER

v.MCCOMAS.

Supreme Court of Nebraska.

February 9, 1887.

Syllabus by the Court.

On January 9, 1885, one A. executed a chattel mortgage to one P. on certain chattels described as follows: “Ten head of two-year-old past steers, valued at thirty-five dollars per head. The above-described chattels are now in my possession, are owned by me, and are free from all incumbrances in all respects.” And on the next day said A. executed a chattel mortgage to one M. on nine head of cattle described as follows: “Nine head of two and three year old steers situate on farm south of Bennett, Neb., one and a quarter miles. The above-described chattels are now in my possession, are owned by me, and are free from all incumbrances in all respects.” A., at the time of executing said mortgages, possessed 98 head of steers of the description named on his farm south of Bennett, and the steers mortgaged were not separated from the others, but the description applied equally to the 98 steers owned by A. Held, that the mortgages created no lien upon any specified steers, and, as against an attaching creditor, were a nullity.¹

The fact that, before the levy of the attachment, certain steers had been separated from the whole number, and claimed under the second mortgage, would be unavailing as against such creditors, unless it was shown that, at the time the mortgage was executed, there was an agreement that it should apply to such steers.

Error from Lancaster county.N. C. Abbott and O. P. Mason, for Price and Melick, plaintiffs in error.

E. F. Warren, for McComas, defendant in error.

MAXWELL, C. J.

In July, 1885, the defendant in error filed a petition in the district court of Lancaster county, claiming a special ownership in nine head of two and three year old steers by virtue of a chattel mortgage made by one Robert Arundale, dated January 10, 1885, and filed for record January 13, 1885, in which the plaintiffs in error are charged with the conversion of said steers, and judgment is prayed for their value. The defendants below (plaintiffs in error) in their answer claim said property by virtue of a chattel mortgage executed by said Arundale to Thomas Price, January 9, 1885, and filed for record January 12, 1885. They also claim by virtue of an attachment levied on said cattle, April 9, 1885.

On the trial of the cause it was admitted in open court “that on and prior to the ninth day of January, 1885, one Robert Arundale was the owner of the cattle in controversy, and that on said day he executed and delivered to plaintiff Price a chattel mortgage on certain property in said mortgage described as ‘ten head of two-year-old past steers, valued at thirty-five dollars per head. * * * The above-described chattels are now in my possession, are owned by me, and free from all incumbrances in all respects.’ Said mortgage was given to secure the payment of a certain promissory note for the sum of six hundred ninety-one and 15-100 dollars, due and payable. Said mortgage was, on the twelfth day of January, 1885, duly filed for record. Said note and mortgage was, before due, transferred to one R. C. Outcalt, who was the owner thereof at the time of the alleged conversion. That on or about the ninth day of April, 1885, said Outcalt put said mortgage into the hands of plaintiff Melick for collection and foreclosure, and under said mortgage said Melick took possession of the property described in petition for the purpose of foreclosing the same. That on or about the ninth day of April, 1885, plaintiff Price, then being a creditor of said Arundale, sued out of the district court of Lancaster county, Nebraska, a writ of attachment against said Arundale for the sum of twelve hundred dollars, which writ was put into the hands of plaintiff Melick, and by him levied upon the property in question, together with other property, as the property of Robert Arundale, and then and there took possession of said property, and held the same, by virtue of said chattel mortgage and writ of attachment.”

The court rendered judgment in the sum of $439.50 in favor of the defendant in error.

The principal error relied upon for the reversal of the judgment is that it is not sustained by the evidence. The testimony tends to show that, at the time the mortgage from Arundale to Price was executed, on January 9, 1885, and at the time the mortgage from Arundale to McComas was executed, January 10, 1885, Arundale had on his farm “ninety head of two-year-old steers, coming three;” and that the mortgage from Arundale to Price, and from Arundale to McComas, did not designate any particular...