Ransom v. Schmela

• Decision Date: 21 June 1882
• Citation: 13 Neb. 73,12 N.W. 926
• Parties: RANSOM v. SCHMELA.
• Court: Nebraska Supreme Court

13 Neb. 73

12 N.W. 926

RANSOM

v.SCHMELA.

Supreme Court of Nebraska.

Filed June 21, 1882.

Error to Cuming county district court.

J. C. Crawford, for plaintiff.

R. F. Stevenson, for defendant.

LAKE, C. J.

The action in the district court was brought by the defendant in error to recover possession of certain personal property claimed by him under a chattel mortgage executed to his intestate by one Andrew Herman. The plaintiffs in error, who on their own motion were made parties defendant in the court below, also claim the property, by virtue of a subsequent mortgage from the same party. The first of these mortgages was given January 26, 1877, and the other January 15, 1878. The one represented by the defendant in error, therefore, was prior in point of time, and a first lien upon the property. Being a first lien, it follows that the defendant in error was entitled to have and hold the property for its satisfaction, unless, for some reason urged by the plaintiff in error, that lien has been either lost or rendered subject to their mortgage. It is claimed on behalf of the plaintiff in error that the first mortgage was subordinated to the second one by reason of its not having been refiled and recorded “with the statement exhibiting the interest of the mortgagee in the property mortgaged,” as directed by section 74, c. 43, Rev. St. But this claim is not sustainable for at least two good reasons, one of which is that the section referred to, although in force when the mortgage was executed, had ceased to be operative before this step could have been taken according to its terms, it having been repealed by the act “To amend sections 73,” etc., approved February 15, 1877. By this repeal such refiling and recording were rendered unnecessary thereafter for the protection of the interests of mortgagees.

The other reason is that even if this section had continued in full force, the plaintiffs in error have not shown themselves to be entitled to its aid, which was intended only for creditors of mortgagors and subsequent purchasers and mortgagees in good faith. They are subsequent mortgagees, it is true, but there is nothing in the record to show that they were not well advised of the existence of the prior mortgage when they took theirs. The want of notice is a fact to be alleged, and, when not admitted, proved by evidence like any other disputed fact in a case; and the burden of proof rests upon him who would establish the character of a mortgagee in good faith. There is no presumption of law to aid him in, the absence of evidence. In Gregory v. Thomas, 20 Wend. 17, the court, in commenting on a provision of statute similar to our own, said that actual notice of the existence of an unpaid prior...