De Priest v. McKinstry

• Decision Date: 08 November 1893
• Parties: DE PRIEST, SHERIFF, v. MCKINSTRY.
• Court: Nebraska Supreme Court

38 Neb. 194

56 N.W. 806

DE PRIEST, SHERIFF,

v.MCKINSTRY.

Supreme Court of Nebraska.

Nov. 8, 1893.

Syllabus by the Court.

An action of replevin will not lie against one who, at the time the action was instituted, was neither in the actual nor constructive possession or control of the property, unless he has concealed, removed, or disposed of the same for the purpose of avoiding the writ.

Error to district court, Keith county; Hamer, Judge.

Action in replevin by Charles B. McKinstry, by his next friend, Hannah M. Blaker, against Martin De Priest, sheriff. Plaintiff had judgment, and defendant brings error. Reversed.J. J. Halligan and Short & Brotherton, for plaintiff in error.

F. Q. Feltz, for defendant in error.

NORVAL, J.

The action below was replevin. It was brought by Charles B. McKinstry to recover the possession of a pony. There was a trial to a jury, with verdict for the plaintiff. The defendant's motion for a new trial was overruled, and judgment was entered against him for $7, that being the amount of damages assessed by the verdict for the illegal detention of the property, and for costs of suit, taxed at $65.68. The petition in error contains five assignments of error, but one of which is relied upon in the brief of counsel, and that is, the verdict is not sustained by the evidence. The pony in dispute was owned originally by one H. R. Jackett, who sold it to one Frank R. Peale, who in turn sold the same to McKinstry. The evidence is clear that Peale was indebted to McKinstry, a minor, in the sum of $65, for work and labor; and, being unable to pay the claim, McKinstry induced him to purchase the pony of Jackett for him, agreeing to take the same in full payment of his demand against Peale. Jackett at the time knew that Peale was buying the pony for McKinstry. Peale gave Jackett a mortgage on the pony on November 18, 1888, for $65, to secure the purchase price. There is some dispute in the testimony as to the time the sale was made by Jackett to Peale, and by the latter to plaintiff below. The testimony of McKinstry and his witnesses goes to show that both sales were made, and possession of the pony delivered to McKinstry, prior to November 14, 1888. Jackett and Peale--also one or two other witnesses--testified that the sale was to Peale on November 18th, the day the chattel mortgage was given. On the trial, Peale was pretty successfully impeached by numerous witnesses, who testified that his general reputation in the community in which he lived for truth and veracity was bad. A fair preponderance of the testimony establishes that McKinstry had been the owner of the pony at least four days before the chattel mortgage was given to Jackett. It is certain that at the time the mortgage was executed the pony was in plaintiff's possession, and so remained, without even a suggestion by Jackett that he held a mortgage thereon, until just before this action was commenced in the spring of 1889, when the pony was taken from McKinstry under the mortgage, and thereupon replevin was brought to regain possession. The evidence satisfies us that plaintiff below is entitled to the possession of the property as against Jackett, inasmuch as Peale had no title or interest in the pony when the mortgage was executed.

Counsel for plaintiff in error in the briefs say that the...