23 Neb. 192 | Neb. | 1888
Two actions .of replevin were brought by theplaintiff,'one against A. L. Pearson, to recover the possession of “ One sorrel mare, weight about 1,000 pounds, now six years, old,” and the second against J. H. Whitney and W. H.. Stockton, to recover the possession of “One- sorrel mare: six years old, weight about 1,050 pounds, with small blazed face.” The cases were tried together, and a. verdict, in each case rendered for the defendant, and a motion for a new trial in each case having been overruled, judgments. were rendered upon the verdicts.
The testimony shows that on the 10th day of January, 1883, one Henry Harbison, purchased the property in question from the plaintiff, for the sum of $212.75, payable on or before December first thereafter, with interest at 10 per cent from date until paid; that to secure the payment of said debt Harbison executed a chattel mortgage on the property in question to the plaintiff, which mortgage was duly filed for record. February 23,1883, Harbison paid to the plaintiff on said mortgage $5.55, and December 19, 1883, paid $84. At the time the mortgage was executed Harbison lived on the plaintiff’s land, in Gage county. In February, 1884, there was a public sale of property at Filley, in Gage county, and at the close of the sale the property in controversy was offered at public vendue, as belonging to Harbison, and the animal first described sold to one Wilber Billings for the sum of $105, and the animal last described sold to one Snyder. David Littlejohn, a brother of the plaintiff, and after-wards his agent, was present at the sale. Billings did not pay for the property at the time. He testifies that: u I came by and got the mare and told Henry I would fix up a note with him in a few days; I knew that Robert Little-john had a mortgage on the mares, and didn’t want to fix up the note until I knew it was fixed up with Robert, and Harbison said he-. In a few days afterwards Robert was at my house, before I gave a note, and I was speaking of the mare; she was in the stable at my house, and we went around to the stable Sunday, and I told Robert I bought the mare. Robert says, ‘I guess it is all right, I gave Henry leave to sell her provided he gave a mortgage on a team as good as the one I sold him.’ In a few days afterwards I settled with Harbison and gave my note for the mare.
“A. Well, I cannot say. It was a few days, I cannot .■say how long.
“Q,. Who was at your house the day Robert was there?
“A. There was several, I cannot name them all, I "think three or four or five or six was out. '
“ Q,. Did Robert Littlejohn see that mare in your possession ?
“ A. I think he did, he was in the stable and talking .about her.
“Q,. Was Robert in the stable?
“A. Yes, him and me and several others; wm were looking at the horses and she was tied among the rest.”
In this testimony Billings is corroborated by certain .admissions of the plaintiff proved on the trial.
The defendants introduced in evidence a mortgage, purporting to be executed by Henry Harbison on the 15th of March, 1884, to the plaintiff, upon “One bay horse nine years old, weighs about thirteen hundred twenty-five pounds. One brown horse seven years old, weighs about thirteen hundred pounds.” The signature to this mortgage is clearly shown to be that of Harbison, and there is testimony tending to show that it was filed by the plaintiff, ■.the entry on the fee book of the county clerk being, ■“August 8, 1884.- From whom received, R. Littlejohn; •amount, cents 20 ; for what services, Chat.” This mortgage was given to secure the sum of $180 due on or before December 15, 1884. The filing on the mortgage shows it to have been on the 9th' day of August, 1884. The plaintiff claims to have had no knowledge of this mortgage whatever, until just before the bringing of these actions. He denies having had any conversation with Billings or any one else in relation to releasing the mortgage given by Harbison to him in January, 1883. He .admits, however, that he knew that Harbison had but one
A number of instructions were excepted to, and the giving of the same is now assigned for error; and also a number of instructions were asked which the court refused to give, to which refusal exceptions were taken; but, as in our view, there was no error in giving or refusing such instructions, they need not be considered. The judgments of the court below are clearly right and are affirmed.
• Judgment affirmed.