19 Neb. 63 | Neb. | 1886
' It appears that on the 11th day of June, 1883, one Henry Poggensee was engaged in mercantile business at Plainview, Pierce county, and was indebted to sundry persons and firms. Among them, and doubtless his largest creditor, was the firm of Meyer & Schurman, the defendants in error. On that day the said Poggensee executed and delivered to Meyer & Schurman a chattel mortgage,
The said Meyer & Schurman then brought their action in replevin in the district court of Pierce county against the said sheriff and replevied the said goods. The said sheriff defendant appeared and plead to said action, a trial was had to a jury, which found a verdict for the plaintiffs for the possession of the goods, and damages to. the amount of ten dollars. A motion for a new trial being overruled and judgment rendered for the plaintiffs, defendant brings the cause to this court on error.
Plaintiff in error assigns for error the overruling by the court of the motion of the defendant for a non-suit; the giving of paragraphs Nos. 5, 6, and 7 of instructions given by the court on its own motion; the giving of paragraph No. 1 of instructions given by the court at the request of the plaintiffs; and the refusal to give paragraph No. 1 of the instructions prayed by the defendant.
The instructions, the giving of which is assigned as error, are as follows:
“5. You are instructed that if you find from the evidence that at the time of the levy of the attachment the plaintiffs were in possession of the property by virtue of the mortgage in evidence, that would be prima fade evidence of ownership, and would entitle them to a verdict unless the defendant has shown by a preponderance of evidence that the mortgage was fraudulent and void.
“ 6. The real question for you to determine is, whether or not the mortgage was made in fraud, if it was then your verdict should be for the defendant. If not, you should find for the plaintiffs. And this is a question of fact for you to decide from the evidence, consisting of all the facts and circumstances shown to have surrounded the parties at the time of the making of the mortgage and the taking possession thereunder.
“ 7. You are instructed that a chattel mortgage containing a condition that the mortgagor shall remain in possession thereof and continue to sell the same in the ordinary course of business is void as to other purchasers in good faith and subsequent creditors of the mortgagor. But when the mortgage contains no such conditions the presumption of good faith attaches when the mortgagee is in possession, and the burden of proving fraud is upon him who alleges it.”
“1.' (Given at the request of plaintiffs). The court instructs the jury that in this case the burden of proving property, so far as the right of property is concerned, is upon the plaintiff, and if possession of the property has been shown by the evidence to have been with the plain*66 tiffs at tbe time it is alleged to have been levied upon by the defendant, then such possession is prima facie of title to the said plaintiffs.
“ 2. The court further instructs the jury that fraud is never presumed, but must be clearly proven to entitle a party to relief on the ground that it has been fraudulent, and the presumption of law is, that business transactions of every man are done in good faith, and for an honest purpose, and any one who alleges that such acts are done in bad faith or for a dishonest purpose takes upon himself the burden of showing by specific acts and circumstances, tending to prove fraud, that such acts were done in bad faith.”
The following instruction was prayed by the defendant, but refused by the court':
“If you find from the evidence that the chattel mortgage given Meyer & Schurman by Henry Poggensee, and introduced in evidence in this case, was given with the understanding that Poggensee was to remain in possession of the goods in controversy, and continue to sell the same in the usual course of trade, then, under the law, said mortgage was void, and conveyed no title to plaintiffs, and your verdict will be for the defendant.”
The chattel mortgage having been placed in evidence, shows for itself. It is in the usual and approved form and contains no provision for the mortgagor going on and selling the mortgaged property in the course of trade, or otherwise, but on the contrary contains a stipulation against the disposal of the whole or- any part thereof. From the deposition of Mr. Poggensee it appears that he “ gave the mortgage upon the agreement that they,” Meyer & Schur-man, would not bother him or trouble him, but to allow him to sell -right along, and pay up as fast as he could. But that as soon as they got the mortgage, and got it recorded, they demanded possession of the goods; that after some hesitation and objection on his part, he gave them up.
Again, in the case of Gregory v. Whedon, 8 Neb., 373, it was held that “a chattel mortgage of a stock of goods in a store, with power to the mortgagor to sell in the ordinary course of trade, although fraudulent and void as to creditors and subsequent purchasers in good faith, is valid
Prima facie Meyer & Sehurman do- not have to rely upon their chattel mortgage to defend this action, but upon their possession, lawfully acquired. And if it be-comés ’necessary to take a step further, they can show a deed (chattel mortgage) of the title, unincumbered by the claim of any other person.
These considerations lead me to the conclusion that the instructions were properly given and refused.
The judgment of the district court is therefore affirmed.
JuDGMENT AFFIRMED.