R. Becker & Degen v. Brown

• Decision Date: 18 June 1902
• Docket Number: 11,767 and 11,768
• Parties: R. BECKER & DEGEN ET AL. v. HENRY E. BROWN. R. BECKER & DEGEN ET AL. v. WALTER F. DALE
• Court: Nebraska Supreme Court

91 N.W. 178

65 Neb. 264

R. BECKER & DEGEN ET AL. v. HENRY E. BROWN. R. BECKER & DEGEN ET AL. v. WALTER F. DALE

Nos. 11,767 and 11,768

Supreme Court of Nebraska

June 18, 1902

PROCEEDINGS in error from the district court for Phelps county. Tried below before BEALL, J. Affirmed.

AFFIRMED.

James I. Rhea, for plaintiffs in error:

Common-law liens, as distinguished from contract or statutory liens attach to the property, without reference to the ownership and override all other rights in the property; while the latter liens are subordinate to all prior existing rights therein. Sullivan v. Glifton, 55 N. J. Law, 324, 39 Am. St. 652.

S. A. Dravo, contra.

AMES, C. DUFFIE and ALBERT, CC. concur.

OPINION

AMES, C.

The above-entitled cases are in essential respects identical, and they having been by agreement of the parties argued and submitted at one time, they will be disposed of in a single opinion.

Section 28 of chapter 4 of the Compiled Statutes of this state enacts: "When any person shall procure, contract with, or hire any other person to feed and take care of any kind of live stock, the person so procured, contracted with, or hired, shall have a lien upon such property for the feed and care bestowed by him upon the same for the contract price therefor, and in case no price has been agreed upon, then for the reasonable value of such feed and care." This is an amendment of a former statute, which, however, differed therefrom only in respect to the specific regulations as to remedies, and concerning which, it was held by this court in Marseilles Mfg. Co. v. Morgan, 12 Neb. 66, 10 N.W. 462, that a lien arising thereunder was subject to the lien of a prior valid chattel mortgage.

In July, 1898, Charles E. Woollen purchased of the plaintiffs in error, Becker & Degen, a herd of cattle then situated in the state of Colorado, and to secure payment of a part of the purchase price, executed in that state an instrument intended as a chattel mortgage to the vendors, upon the property. It was practically conceded upon the argument that the instrument was, considered as a Colorado contract, void, for non-compliance with the statutory regulations of that state with respect to the manner of its execution; and it misdescribed the cattle as to marks and brands, and recited that they were then upon a certain tract of land in Harlan county, in this state, upon which they were not then or afterwards placed. The mortgage was filed in Harlan county on July 8, 1898, but the cattle were taken to Furnas county, and remained there until September 26th of that year, when they were driven by Woollen to the feed lots of the defendants in error Brown and Dale.

We think it quite clear that this instrument, whether absolutely void or not, was not constructive notice to the parties afterwards dealing with the property. Upon the date last mentioned the animals were delivered by Woollen, a part of them to Brown and a part to Dale, under agreements for keeping and feeding them through the winter by the latter at a specified rate of compensation. In January, 1899, the plaintiffs in error, with knowledge of the foregoing facts, obtained another instrument, intended as a mortgage, from Woollen, which correctly described the cattle as to marks and brands, but made the same recital as to their situation as did the Colorado document. Neither Brown nor Dale had any actual knowledge of the existence of either of these papers until April, 1899, and the second of them could not affect their rights while in lawful possession of the animals under their contract for keeping and feeding them. Whether the second mortgage was valid or not, it was subject to their lien as agisters, while the first-mentioned instrument was void as to them, at least until it was brought to their actual notice. At least as early as the fore part of January the plaintiffs in error became aware of the infirmity of their Colorado contract, and sought to remedy it by obtaining a new mortgage. At and before that time they knew that Brown and Dale were in possession of the stock, feeding and caring for it in good faith under the arrangement between the latter and Woollen. It would not be consonant with the most common principles of honesty to permit them to lie by for a term of nearly four months longer, and then successfully assert a lien upon the property superior to that of the agisters. This they attempted to do. On the 26th of April, Perry, an agent of the plaintiffs in error, exhibited one or both of these instruments to Brown and Dale, who were near neighbors, and telling them that he had a mortgage on the cattle, demanded possession of them. Brown and Dale both declined to yield possession, asserting that they had a lien on the animals for their keep under the arrangement with Woollen; but upon insistence by Perry that he had a valid mortgage, giving a superior right, and that he intended to take the property in any event, they so far yielded as to waive taking by actual force, and on the...