Ward v. Watson

• Decision Date: 10 October 1888
• Parties: WARD v. WATSON.
• Court: Nebraska Supreme Court

24 Neb. 592

39 N.W. 615

WARD

v.WATSON.

Supreme Court of Nebraska.

October 10, 1888.

Syllabus by the Court.

The statute requires a chattel mortgage, or “a true copy thereof,” to be filed in the office of the county clerk, who shall indorse on such instrument or copy the time of receiving the same, and shall keep the same in his office for the inspection of all persons. Held, that the party claiming under a mortgage so filed could not withdraw the instrument from the office, and proceed under the statute to foreclose.

The notes accompanying a mortgage are evidence of the debt and the times of payment, and where certain notes, stating definitely the amounts and times of payment, were duly signed by the maker, and a chattel mortgage on certain property to secure the same party, in blank, but to be filled up in the ordinary form, was also signed, held, that a provision in the mortgage, inserted without the mortgagor's knowledge or consent, changing the times of payment from those stated in the notes, was not binding on him.

Error to district court, Lancaster county; FIELD, Judge.Harwood, Ames & Kelley and Edson Rick, for plaintiff in error.

Houston & Baird and F. W. Collins, for defendant in error.

MAXWELL, J.

In the autumn of 1886 the plaintiff was the owner of a restaurant in the city of Lincoln, and in October of that year sold the same to one Jacob McLaughlin. On the 7th of November following, McLaughlin sold the restaurant to the defendant for the sum of $1,200, one-half of which was paid at the time of the sale. The defendant was given immediate possession. On the 9th of that month the defendant and McLaughlin went to the office of an attorney, and had him prepare two notes of $300 each, one of which was to be due March 1, 1887, and the other April 1, 1887. These notes were to be secured by a chattel mortgage on the property purchased. The defendant was requested to produce the schedule of property received by him from McLaughlin for insertion as a description of the property to be mortgaged, and, going to his place of business for that purpose, found there a party with whom he had some business, which required immediate attention. He thereupon returned to the attorney's office with the schedule, and stated that his presence was required at his place of business, and he must return immediately. He thereupon signed the notes, and the mortgage, but partly completed, and left the office with the understanding on the part of all of the parties that the mortgage was to be filled out in the ordinary form. There appears to have been some conversation on the part of the defendant as to his ability to pay the debt, and he seems to have stated that he expected some money from Kansas out of which he could pay the debt in case he was unable to do so from the restaurant; and that he would like the privilege of paying $100 per month. There is no pretence, however, that there was any agreement on his part to pay in that manner. The mortgage, as filled out, however, contained a provision that the debt should be paid in monthly installments of $100. There is some dispute in the testimony as to whether or not this provision was in the mortgage when it was signed, nor is it material,...