Conchman v. Wright

8 Neb. 1 | Neb. | 1878

Maxwell, Ch. J.

This is an action of replevin. The plaintiff filed a motion in the court below to strike out certain parts of the petition, which was sustained, to which the plaintiff excepted. The defendant then filed a general demurrer to the. petition, which was sustained by the court, to which the plaintiff excepted. The court then proceeded to assess the defendant’s damages, and rendered judgment against the plaintiff for a return of the property, or in case of failure to return the same, a judgment for the sum of $101 and costs. The cause is brought into this court by petition in error.

The petition alleges that the plaintiff is entitled to the immediate possession of certain personal property on which he claims to have a lien, by virtue of a verbal agreement with the defendant that the property should be held by the plaintiff as security for the payment of a certain promissory note, executed by the defendant with the plaintiff as security, which note the plaintiff was compelled to pay. The petition also alleges that the defendant wrongfully detains the property in question, and “that said property was not taken in execution on any order or judgment against plaintiff, or for the payment of'any tax, fine, or assessment assessed against him, or by virtue of an order of delivery issued in replevin under and by the laws providing for replevin, of the state of Nebraska, or by any mesne or final process against the plaintiff.”

The petition states sufficient to entitle the plaintiff to recover.

As between the parties to the transaction, a chattel' mortgage need not be in writing. A verbal agreement to give and accept security is valid between the parties, although of no validity as against creditors and bona fide purchasers. It follows that the court erred in sustaining the demurrer.

The judgment of the district court is reversed and the cause remanded for further proceedings.

Reversed and remanded.