Union State Bank v. Hutton
| Decision Date | 20 March 1901 |
| Docket Number | 9,434 |
| Citation | 85 N.W. 535,61 Neb. 572 |
| Parties | UNION STATE BANK v. GEORGE HUTTON ET AL |
| Court | Nebraska Supreme Court |
ERROR from the district court for Clay county. Tried below before HASTINGS, J. Reversed.
REVERSED AND REMANDED.
Thomas H. Matters, for plaintiff in error.
John C Stevens, contra.
The plaintiff in error, also plaintiff below, brought an action in replevin for the possession of certain personal property consisting of two horses and a number of cattle of all ages and both sexes, in which it claimed a special ownership by virtue of a chattel mortgage executed by defendant George Hutton to secure the payment of a promissory note for $ 430 and interest, which, it was alleged, was past due and unpaid. Under the writ of replevin the plaintiff obtained possession of the property in controversy. On the trial of the case, the intervener, Charles C. Hurd, filed a petition in intervention, claiming the right of possession of the same property, and alleging a special ownership therein by virtue of a chattel mortgage alleged to have been executed by the same party to the intervener, to secure the payment of a note for $ 563.61 and interest, which, it was alleged, was past due and unpaid. On the trial of the case the ownership of the property mortgaged was in dispute, the defendant Margaret Hutton, the wife of the mortgagor, claiming to be the owner thereof, and that the defendant, George Hutton, had no legal right or authority to create a lien thereon in favor of the plaintiff under and by virtue of the mortgage he had executed. She testified to her ownership of the property, and that the mortgage to the plaintiff was given without any knowledge on her part, or consent or authority from her; but that the mortgage to the intervener, Hurd, which was executed by her husband in his own name, was by her authority and with her consent. Hutton also testified that he did not own the property, that it belonged to his wife, and that he so advised the plaintiff when he executed the mortgage in its favor; and also testified to substantially the same facts as his wife as to ownership and the circumstances of giving the mortgage to the intervener. The jury in their verdict found for the intervener as to all the cattle in controversy save three calves, the right of possession of which they found to be in Mrs. Hutton, finding the value of the calves to be $ 18; and also one bull, the right of possession of which they found to be in the defendant, George Hutton, finding the value of the animal to be $ 20. As to the two horses replevied, one claimed by Mrs. Hutton and one by a son, the jury found in favor of plaintiff under its claim by virtue of its mortgage.
It is contended by plaintiff in error that the finding of the jury as to the disputed ownership of the property was that it belonged to the defendant, George Hutton, while the defendants in error insist that it should be construed as finding that Mrs. Hutton owned the property and as against the plaintiff in error on that issue. We confess the finding is something of an enigma, and in irreconcilable conflict with itself. What the finding really is with relation to the disputed ownership of the property is undeterminable from the verdict itself. It is not a logical result of the evidence under the issues joined.
The question of ownership becomes material in another aspect of the case. It is argued by the plaintiff in error that the mortgage in favor of the intervener is void for uncertainty leaving as a valid lien on the property its own mortgage, which is subsequent in time. The description of the property in the mortgage of the intervener is as follows: ...
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