42 Neb. 607 | Neb. | 1894
This is an action of replevin brought in the district court of Hall county by Carl M. Persons against M. Randall. Persons alleged in his petition that he was the owner of and entitled to the immediate possession of the property replevied, the same being “an office chair.” .The answer of Randall was a general denial. Persons had a verdict and judgment, and Randall brings the case here for review.
Throughout the trial counsel for Persons laid great stress upon the fact of the existence of record of the chattel mortgage on this property made by Meth; and there is evidence in the record which tends to show that Randall had actual knowledge of the existence of this mortgage, but whether he had such actual knowledge, he was bound by the notice which the record imparted, and of course could not be an innocent purchaser of this property as against the holder of said chattel mortgage, if in force. There is no doubt but that the admission in evidence of the note and chattel mortgage was error. The difficulty in the case is to determine whether this error was prejudicial to Randall. There is evidence enough in the record, if believed by the jury, to sustain a finding that Persons was the absolute owner of this property at the time he brought this suit by virtue of the contract between him and Meth, by which the sale of the property to the latter was rescinded; but we cannot say certainly whether the verdict of the jury, that “ at the time of bringing said action the said plaintiff was entitled to the possession of said property,” was based upon their finding ihat the absolute title to the property was in Persons by i cason of the said contract of rescission between him and
Reversed and remanded.