Randall v. Persons
| Citation | 42 Neb. 607,60 N.W. 898 |
| Parties | RANDALL v. PERSONS. |
| Decision Date | 08 November 1894 |
| Court | Supreme Court of Nebraska |
1. In replevin, as in all other actions, the evidence should correspond with the allegations in the pleadings. And where a plaintiff in replevin bases his right to the possession of the property claimed by reason of a special ownership therein, or lien thereupon, he should set out in his petition the facts with reference to such special ownership or lien. Haggard v. Wallen, 6 Neb. 271, reaffirmed.
2. A litigant cannot plead one thing, and prove another. He cannot plead that he is the absolute owner of property, and satisfy such plea by proving that he simply has a lien upon it. Nor can he plead that he is entitled to the possession of property by virtue of a lien upon it, and satisfy such plea by proving that he is the absolute owner of the property.
3. The legal title to property pledged by a chattel mortgage remains in the mortgagor until divested by foreclosure proceedings and sale in pursuance of law, and until the title of the mortgagor is thus divested the mortgagee has merely a lien upon the property. Musser v. King (Neb.) 59 N. W. 744, reaffirmed.
4. A plaintiff in replevin pleaded that he was the absolute owner, and entitled to the immediate possession, of the property replevied. The defense was a general denial. To make his case, plaintiff introduced in evidence a chattel mortgage executed to him on the property. Held irrelevant, under the issues.
Error to district court, Hall county; Harrison, Judge.
Action of replevin by Carl M. Persons against M. Randall. Defendant purchased the property in question from a purchaser at an execution sale, and plaintiff claimed it under two titles,--as mortgagee, and as vendor in a conditional sale since rescinded. Plaintiff had judgment, and defendant appeals. Reversed.M. Randall and Darnall & Kirkpatrick, for plaintiff in error.
Chas. G. Ryan, for defendant in error.
This is an action of replevin brought to the district court of Hall county by Carl M. Persons against M. Randall. Persons alleged in his petition that he was the owner of, and entitled to the immediate possession of, the property replevied, the same being “an office chair.” The answer of Randall was a general denial. Persons had a verdict and judgment, and Randall brings the case here for review. The evidence in the bill of exceptions establishes, and tends to establish, the following facts: Persons sold the property and other property to one Meth, taking the latter's note for the purchase price of the property, and a chattel mortgage thereon to secure the payment of the note. This mortgage, or a copy of it, was duly filed in the office of the county clerk of Hall county, where the property was situate. Persons afterwards sold and indorsed Meth's note to a bank in Grand Island, and, the note not being paid at maturity, the bank sued Meth, and Persons, as an indorser thereon, and obtained judgment against them for the amount of the note in suit. Persons then paid the amount of this judgment and interest to the bank, and he and Meth entered into an agreement, the substance of which was that the contract of sale of the property between Meth and Persons should be and was rescinded, the title to the property reinvested in Persons, and Meth was to pay Persons a small sum of money. The property, however, was not at this time removed from the place of business or office of Meth, where it was when the agreement between him and Persons was made. Soon after this time an execution was levied upon this property by one of Meth's judgment creditors, and the property in controversy and other property was, by the consent of Meth and the execution creditor, sold to Randall, he paying the agreed price thereof to the attorney of the execution creditor. We say that the evidence in the record establishes, and tends to establish, the foregoing facts, for the evidence, as to nearly all...
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