36 Neb. 621 | Neb. | 1893
The plaintiff in error was plaintiff in the court below. The action was to recover the possession of a quantity of corn undivided. The property was taken by the sheriff under the replevin writ, and delivered to the plaintiff. Upon the trial the jury returned a verdict for the defendant, upon which judgment was entered.
It appears from the bill of exceptions that the plaintiff is the owner of a farm of 160 acres in Hall county, which
It is undisputed that after the corn crop had been matured plaintiff’s share was gathered by the tenants and delivered to him. The other three-fifths of the corn, amounting to about 1,900 bushels, was husked by Bolin and Dewitt, and piled upon the ground in a single heap; but there was never any division made of the corn belonging to the tenants. Bolin had also placed in the same pile 250 bushels of corn owned by him, which was raised on lands belonging to one Robbins.
On the 16th day of December, 1889, Dewitt sold his interest in the corn and some millet hay to the defendant, and executed a bill of sale for the same. Subsequently Bolin refused to deliver to plaintiff any portion of the corn covered by said chattel mortgage, and this action was instituted, plaintiff obtaining under the writ 1,051 bushels of said corn.
Objection is made to the 5th, 6th, and 7th paragraphs of the court’s charge to the jury, which are as follows:
“6. You are instructed that if you believe from the evidence in this case that Oscar Dewitt gave the plaintiff a chattel mortgage upon his share of certain corn when growing in the field, and that defendant and Dewitt raised said corn together, and after the giving of said mortgage husked the corn and piled it on the premises occupied by defendant without objection on the part of the plaintiff, and that subsequently defendant, in good faith and without actual notice of the mortgage of the plaintiff, purchased of Oscar Dewitt his share or portion of said corn, then you will find for defendant, even though you also find that plaintiff’s mortgage was duly filed in the office of the county clerk of Hall county, Nebraska.
“ 7. If you believe from the evidence that Oscar Dewitt gave the plaintiff John F. Fines a mortgage upon the corn in controversy while growing in the field, that the same afterwards was husked and placed on the land of defendant, or in his possession, that defendant after the giving of said mortgage by Dewitt to plaintiff purchased the corn of Dewitt, and at the time he purchased it had actual knowledge, or notice, or knew that the plaintiff had a mortgage upon the corn, then your verdict will be for plaintiff, and
This court in Gillilan v. Kendall, 26 Neb., 82, held that a chattel mortgage upon growing corn is not constructive notice to third parties of the mortgage upon the corn after it has been husked and placed in piles or cribs, and that where one, in good faith in open market, purchases such corn from the mortgagor without actual notice of the existence of the mortgage, will take it free from the lien of the mortgage. The case before us, in the facts, is clearly distinguishable from Gillilan v. Kendall, supra. In the case cited the corn was purchased by Kendall & Smith at their place of business, in good faith and in open market, and they had no knowledge of the existence of the mortgage upon the corn, except such constructive notice as the proper filing of the mortgage gave them. In the case at bar Bolin was not an innocent purchaser for value in the open market. He took the corn in payment of a pre-existing debt. He had helped to gather the corn and place the same in a pile. The filing of the mortgage was constructive notice to him of the lien of the mortgage while the corn was standing in the field, and the defendant having assisted in husking the corn, such filing of the mortgage was sufficient notice to him of the existence of the mortgage upon the same corn after it was harvested and while it was in the pile. The court failed to submit to the jury this view of the case, and the instructions were therefore erroneous.
But it is contended that the judgment should not be reversed for the errors in the charge to the jury for the reason that the verdict is the only one that could have been properly returned under the evidence. Stated differently, that the plaintiff cannot maintain replevin for an undivided interest in the corn. Doubtless, to recover personal property under a writ of replevin, the plaintiff must establish that he is entitled to the immediate possession of
In the case at bar the defendant declined to give up any portion of the corn, and denied that plaintiff had any interest therein, but repudiated the co-tenancy and claimed to own the property in entirety. By such refusal to recognize the rights of the plaintiff the defendant ought to be pre
The judgment is reversed and the cause remanded for further proceedings.
Reversed and remanded.