11 Neb. 499 | Neb. | 1881
Three questions are brought to our notice and discussed by counsel for plaintiff in error in their brief, and on which they contend the court below erred in its ruling. The first of these questions is whether the mere failure of the county clerk to properly index the chattel mortgage under which the plaintiff in error claimed the property, rendered it ineffectual as to a subsequent mortgagee, which the defendant in error was, in good faith, and without actual notice of its existence. ¥e answer this question in the negative, for the following reasons:
Sec. 73 of ch. 43 of the Rev. Statutes, 1866, as amended by the act of Eeb. 15th, 1877, provides that: “Every mortgage, or conveyance intended to operate as a mortgage of goods and chattels, hereafter made, which shall not be accompanied by an actual and continued change of possession of the things mortgaged, shall be absolutely void as against the creditors of the mortgagor, and as against subsequent purchasers and mortgagees in good faith, unless the mortgage or a true copy thereof shall be filed in the office of the county clerk of the county where the mortgagor executing the same resides * * * * * and such clerk shall endorse 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, and such mortgage or instrument so filed shall be as valid as if the same were fully spread at large upon the records of the county.” Laws 1877, 51. The plain import of this language is, that if the instrument be filed by the county clerk of the proper county, and kept in his office for inspection by interested parties, nothing more is wanting to hold the property as against subsequent purchasers or mortgagees.
The case of Metz v. The State Bank, 7 Neb., 165, cited .by counsel for the defendant in error in support of their view that the indexing was essential to the validity of .the mortgage, is not applicable. That was a case where •a judgment creditor sought to make his judgment, rendered by a probate court, a lien upon the debtor’s real ^estate within the county, and while it is true that we there held that indexing the names of the parties to-
The second question is, whether the property mentioned in the mortgage was described with requisite certainty. The description was as follows, viz.: “ Two mules, one bay and one brown, aged eight years old. One mare, bay, eight years old-. One bay horse, age five years old. One black mare, age five years old. One lumber wagon. One double harness. Nine acres of growing Avheat, situated on south-west quarter of see. 35, tOAvn 12, range G.” It is contended by counsel for the defendant in error that this description is void for uncertainty. We think otbenvise. The color and ages of all the animals are definitely given. The wagon is described as a “lumber” one, a term generally applied to an ordinary double wagon used by farmers. The harness as a “double” one, that is, designed for a team of íavo animals. The nine acres of wheat Avas then groAving. According to the mortgage, this prop
The third question is, whether the release of a portion of property covered by his mortgage, by the plaintiff in error, worked a postponement of his lien to that of the defendant in error. The plaintiff’s mortgage was executed on the twenty-first of April, 1879, to secure the payment of three promissory notes of that date, one for one hundred and fifty dollars, payable Nov. 1st, 1879, one for one hundred dollars, payable at the same time, and one for fifty dollars, payable Nov. 1st, 1880, with interest. The mortgage held by the Bank was given on the twenty-second of October, 1875, to secure the payment of a promissory note bearing date of the eighth of that month, and calling for the payment of one hundred and twenty-five dollars in one year, with interest. This mortgage was upon a span of mules, harness, and wagon, a part of the property covered by the first mortgage.
Occupying this relation to the property, and to each other, it was the right of the holder of the junior mortgage to redeem and have an assignment of the senior incumbrance. Renard v. Brown, 7 Neb., 449. Or, but for the release of said property not covered by the second mortgage, the first mortgagees might have been compelled first to lpok to that for payment. 1 Story’s Eq. Jurisprudence, sec. 633. High v. Brown, 46 Ia., 259. The testimony very clearly shows that this course would have resulted in the satisfaction of both debts, and without the least prejudice to the senior mortgagees.
In Guion v. Knapp, 6 Paige, 35, it was held that where a mortgagee, with notice of successive alienations of parts of the mortgaged property, released that part which was primarily liable, in equity, for the payment of the mortgage debt, he should not be permitted to charge other portions with the payment of the mortgage, without deducting from the amount due the value of the part thus released.
After a careful perusal of the evidence, and an examination of authorities cited, we are of opinion that the judgment of the court on the issue joined was right, and it is affirmed.
Judgment affirmed.