Rogers v. Pierce, 12 Neb. 48

12 Neb. 48 | Neb. | 1881

Maxwell, Ch. J.

On the 6th day of September, 1879, one Heath, a resident of Kearney county, purchased a horse from the defendants at Hastings, in Adams county, for the sum of one hundred dollars, and executed a mortgage on the same to secure the payment of eighty dollars with ten per cent, interest, on the 1st day of September, 1879. On or about the 19 th day of September, Heath sold the horse in question to one Powers, who, on or about the 6th day •of October of that year sold said horse to the plaintiff for about the sum of eighty dollars. There is no testimony tending to show that Powers had notice of the existence of the mortgage at the time he purchased the horse, or that the plaintiff at the time of his purchase had any actual notice of its existence. On or about the 20th day of October, 1879, one of-the defendants went to the residence of the plaintiff and demanded the horse in question, claiming the same under the mortgage. There is a conflict in the testimony as to whether or not the plaintiff was permitted by the defendants to retain the horse in ■question upon his promise to pay for the same; and in the view we take of the case, it is entirely immaterial whether such promise was made or not, as it will not sustain the action without a consideration, that is, unless the mortgage was valid as against Rogers. The plaintiff afterwards traded off the horse for other property. The defendants, after demand therefor, brought an action for conversion of the horse, and recovered the sum of ninety dollars. The cause is brought into the ■court by petition in error.

Sec. 14 of Chap. 32 of Comp. Stat. 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 immediate delivery and be followed by an actual and continued change of possession of the things mortgaged, shall be absolutely void as .against the creditors of the mortgager 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 mortgagee executing the same resides, or, in case he is a non-resident of the state, then in the office of the clerk of the county where the property mortgaged may be at the time of executing such mortgage, 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 may be so filed, although not acknowledged, and shall be valid as if the same were fully spread at large upon the records of the county.”

Powers is shown by the testimony to have purchased the horse before the mortgage was recorded, and in the absence of proof to the contrary he is presumed to be a bona fide purchaser, and the burden of proof is on the defendants to show that he had notice of their mortgage. Fort v. Burch, 6 Barb., 78. Center v. Bank, 22 Ala., 743. McCormick v. Leonard, 38 la., 272. Miles v. Blanton, 3 Dana, 525. Van Wagenen v. Hopper, 8 N. J. Eq., 707. The reason is, the first purchaser being entitled to hold and enjoy the property thus purchased, he is equally entitled to sell the same. Alexander v. Pendleton, 8 Cranch, 462. Jackson v. Given, 8 Johns., 141. Bumpus v. Platner, 1 John Ch., 219. Demaret v. Wyncoop, 3 Id., 147. If Powers was a bona fide purchaser, he could convey to whom he pleased, as a purchaser, without notice, may convey to one with notice and the latter will be protected. This is decisive of the case. There is an entire failure of proof tending to show that Powers was not a bona fide purchaser, and without such testimony the-defendants in error can not recover.

The judgment of the district court is therefore reversed and the cause remanded for further proceedings.

Reversed and Remanded.