18 Neb. 191 | Neb. | 1885
This is an action of replevin brought by the defendant in error against the plaintiff to recover the possession of “ one bay horse, one sorrel horse,” in which he claims a special ownership by virtue of a chattel mortgage exécuted
It appears from the evidence that in September, 1882,. one Silas M. Clark, of Lancaster county, was the owner of the horses in question, and entered into a contract to sell the same to one B. E. Glazier for the sum of $160.
To obtain money to pay for them, and for other purposes, Glazier, on the 26th of September of that year, executed a chattel mortgage upon the horses in question and other property to the defendant in error. In this mortgage the horses are described as follows: “One bay horse 8 years old, weight about 1,200; one sorrel horse 10 years-old, weight about 1,000.” The mortgage contains this allegation : “ And I, the said mortgagor, do solemnly declare and represent unto the said mortgagee that I am lawfully possessed of said goods and chattels as of my own property, that the same are free and clear of all incumbrances for obtaining the above money.”
The testimony shows that Glazier was at that time residing in Lancaster county, and that the property was within that county. Soon - afterwards Glazier traded the horses in question to the plaintiff in error for a span of mules. This action was brought against him to recover the possession of the property; but as he had disposed of the sorrel horse before the action was brought the bay horse alone was taken under the order of replevin.
In Jordan v. Hamilton County Bank, 11. Neb., 503, the description of the property was as follows: “ Two mules, one bay and one brown, aged eight years; one bay horse, age five years, one black mare, aged eight years. * * *
Nine acres of growing wheat situated on sec. 35, town 12., range 6.” This was held to be sufficient. In this case the description of the property in dispute is “one bay horse eight years old, weight about 1,200,” of which the mortgagor was possessed.. This certainly is sufficient to put a purchaser on inquiry, particularly where the mortgagor appears to have possessed but one horse of that color, and it is shown that Glazier was actually using the horse in question for some time before and at the time he traded the same to the plaintiff in error.
Objection is made that the age of the horse is shown to have been much greater than was stated in the mortgage, consequently calculated to mislead. The testimony tends to show that the horse in question was about twenty years of-age. There is no proof that Glazier had been informed by Clark as to the age of the horse when he purchased him, nor that it was a material part of the description. The bay horse is shown to have weighed about 1,200 pounds at the time of the execution of the mortgage, and to have had a star in his forehead and “ some white on his feet.” As Glazier possessed no other bay horse, the description seems to be sufficient.
2. The testimony tends to show that Glazier made a contract for the purchase of the horses about the 25th of September. Glazier had taken the horses on trial, under an agreement that if he did not pay for them he would pay $1.50 per day for their use. While in possession of them under this contract the mortgage was executed, the horses not being paid for until the 4th or 5th of the following
3. That the defendant below came rightfully into the possession of the property, and as no demand was made upon him for the possession, he should not be taxed with costs. It will be observed that it is alleged in the petition that a demand was made on the defendant below for the delivery of the property before the commencement of the suit. This is denied in the answer, and there is no proof on that point, hence the plaintiff below has failed to that extent to make out his case. In justification of the failure to prove a demand it is said in the brief of the plaintiff that, “ in this case the defendant claimed the property as his, denied plaintiff’s claim of title and right of possession, and contested every effort made by plaintiff to assert his rights and recover said property,” citing Homan v. Laboo, 1 Neb., 209. Homan v. Laboo, 2 Id., 291. In the case cited in 1 Neb. it is said (pages 209, 210), “Laboo, answering, does not disclaim ownership nor put in the plea of non detinet, under which, with the right of Homan established as pledgee, he might have claimed protection from costs as an innocent party upon whom no demand had been made; but beside denying Homan’s claim and charging conspiracy between Homan and Ward, he avers that he is the owner of said mules and entitled to the possession of the same.”
Judgment accordingly.