Richards v. Yoder

• Decision Date: 28 September 1880
• Citation: Richards v. Yoder, 10 Neb. 429, 6 N.W. 629 (Neb. 1880)
• Parties: T. W. T. RICHARDS, PLAINTIFF IN ERROR, v. B. Y. YODER ET AL., DEFENDANTS IN ERROR
• Court: Nebraska Supreme Court

6 N.W. 629

10 Neb. 429

T. W. T. RICHARDS, PLAINTIFF IN ERROR, v. B. Y. YODER ET AL., DEFENDANTS IN ERROR

Supreme Court of Nebraska

September 28, 1880

THE PLAINTIFF in error brought an action in the district court of Cuming county, alleging in his petition, in substance, that on the twenty-third day of August, 1877, the defendant, B. Y Yoder, confessed a judgment in the county court of Cuming county, Nebraska, in favor of one R. H. Lacey, for $ 409.64 and $ 2.00 costs of court, and the further sum of $ 37.00 as an attorney's fee; that to obtain a stay of execution on said judgment, the said B. Y. Yoder executed his undertaking with the defendants W. R. Artman and A. W. Mechling sureties, and filed the same in the said county court; that on the fourteenth day of November, 1877, the said R. H. Lacey assigned said judgment to the plaintiff; that to indemnify the said sureties against loss and damage, in consequence of their liability upon said undertaking for stay, the said B Y. Yoder and the said Rebecca Yoder made and delivered to the said sureties a chattel mortgage on certain personal property, which is set out and described in said petition the consideration and condition of said mortgage were that whereas, on the twenty-third day of August, 1877, the said B. Y. Yoder confessed a judgment in the said county court of said Cuming county, for $ 409.64 and $ 2.00 costs, in favor of R. H. Lacey, of said place; and, whereas, the said W. R. Artman and A. W. Mechling entered into an undertaking as sureties for a stay of execution on said judgment; now if the said B. Y. Yoder shall pay said judgment, interest, costs, and accruing costs at the expiration of said stay, and shall keep the said sureties harmless, then this conveyance to be void; but if the said B. Y. Yoder shall fail to pay said judgment and interest and costs, then the said second parties (sureties) are authorized and empowered to take possession of said property and sell the same, and after paying all costs and charges they shall apply the remaining proceeds in payment of said judgment, and pay the surplus, if any, to the mortgagors; that said stay has long since expired, and the said B. Y. Yoder and the said sureties have failed to pay said judgment or any part thereof; that although the said B. Y. Yoder has failed and refused to pay the said judgment, the said Artman and Mechling have failed and refused to take possession of said property so mortgaged, and sell the same, and with the proceeds pay said judgment as they of right ought to do; and they have refused to assign said mortgage to the plaintiff; that the said B. Y. Yoder and the said W. R. Artman and A. W. Mechling are each insolvent, and have been insolvent ever since the expiration of said stay of execution, and the plaintiff is remediless at law for the collection of said judgment.

The plaintiff asked to be subrogated to the rights and interests of said Artman and Mechling in said chattel mortgage; that he be permitted to take possession of said property described in said mortgage, and sell the same and apply the proceeds to the satisfaction of his said judgment, as was intended by the parties to said mortgage. D...