Whitney v. Levon

• Decision Date: 07 April 1892
• Citation: 51 N.W. 972,34 Neb. 443
• Parties: HOWARD WHITNEY, SHERIFF, v. WILLIAM LEVON ET AL
• Court: Nebraska Supreme Court

51 N.W. 972

34 Neb. 443

HOWARD WHITNEY, SHERIFF, v. WILLIAM LEVON ET AL

Supreme Court of Nebraska

April 7, 1892

ERROR to the district court for Sarpy county. Tried below before DOANE, J.

AFFIRMED.

Martin Langdon, for plaintiff in error, cited: Temple v Smith, 13 Neb. 514; Jones v. Hetherington, 45 Iowa 681; Savage v. Hazard, 11 Neb. 328; Dorrington v. Minnick, 15 Id., 404; Lane v Starkey, Id., 289; Herrmann, Chat. Mort., 229, 236; Brunswick v. McClay, 7 Neb. 138; Anderson v Peterson, 25 N.W. [Wis.], 541; Freeman v. Rawson, 5 Ohio St. 1; Harman v. Abbey, 7 Id., 218; Tollen v. Ellison, 3 Neb. 75.

James P. Grove, contra, cited: Hedman v. Anderson, 6 Neb. 400; Chicago Lumber Co. v. Fisher, 18 Id., 337; Aultman v. Steinan, 8 Id., 114.

OPINION

POST, J.

This was an action of replevin in the district court of Sarpy county. On a trial by the court without a jury there was a finding and judgment for the plaintiffs below, which plaintiff in error seeks to reverse by petition in error to this court. The subject of the contention is a stock of lumber lately owned by Peter N. Deerson in Gretna in said county. Plaintiffs below, defendants in error, claimed by virtue of a chattel mortgage executed by said Deerson, and the defendant below, plaintiff in error, claimed the property through an order of attachment issued by the clerk of the district court of Sarpy county in an action in which the Howell Lumber Company was plaintiff and said Deerson was defendant. The said defendant, as sheriff of said county, had taken the lumber in question by virtue of said order of attachment and removed it from the premises of Deerson and had it in his possession at the time the action was commenced. There is but little controversy with reference to the facts of the case. Prior to the execution of the mortgage to defendants in error they had become surety for Deerson to the amount of $ 1,300. About the 18th day of December 1888, Deerson applied to them for a loan of $ 1,200. They agreed to advance him the amount named on condition that he would secure them for the money so advanced and also for the amount for which they had become liable as surety for him as aforesaid. Deerson agreed to this proposition, and accordingly executed two notes in favor of defendants in error for $ 1,500 and $ 1,000 respectively. To secure said notes he executed a chattel mortgage on the property in controversy and also on a stock of furniture then owned by him, also a real estate mortgage on certain town lots worth from $ 1,600 to $ 2,000.

It is contended that the chattel mortgage is void for the reason that the mortgaged property was left in the possession of the mortgagor, with power to sell and dispose of it. It is true the property was left in the possession of Deerson, the mortgagor, but the parties thereto all testify, and they are not contradicted, that there was no authority given Deerson to sell any of the property. It appears that the office of the lumber yard was kept open, but there was no evidence of any sales of lumber. It is shown also that the elevator business in which Deerson was interested was transacted in the office at the lumber yard, which, in part, accounts for the latter being kept open. The evidence shows also that the man who had, up to the time of the execution of the mortgage, been in charge of the furniture business, remained in charge thereof and made sales of furniture amounting to $ 20.17, which are the only sales proved. That there was ample consideration for the mortgage is apparent from the proofs. There is no evidence in the record from which an inference can be drawn that Deerson in the execution of the mortgage intended to defraud his creditors. Whatever may have been his intentions toward his creditors, it is clear that the defendants in error did not participate in, or know of, any fraud, but, on the contrary, acted in good faith throughout the transaction. The fact that Deerson was left in possession of the mortgaged property, without authority to sell, does not raise a conclusive presumption of fraud, although a small fraction of the property was in fact sold by him or his servants. (Hedman v. Anderson, 6 Neb. 392; Chicago Lumber Co. v. Fisher, 18 Neb. 334.)

It is next contended that the mortgage is void for the reason that the security exacted by defendants in error included all of Deerson's property, and is greatly in excess of the latter's indebtedness to them. From the evidence it appears that the property covered by the chattel mortgage has all been sold and the proceeds applied on the debt, leaving...