57 Neb. 450 | Neb. | 1899
On November 22, 1892, Joseph Smith, a retail merchant of Dakota county, made and delivered to Gilmore & Ruhl a chattel mortgage.on his entire stock of merchandise to secure an antecedent indebtedness amounting to $1,150. Afterwards, on the same day, he executed other mortgages covering the same property, one being ■to the Homer State Bank to secure a claim of $100, one to Arthur Sherlock for $250, and one to S. A. Combs for $275. On the following day another mortgage was given by Smith to H. A. Jandt to secure a pre-existing indebtedness amounting to $1,525. These several mortgages were filed in the office of the county clerk of the proper county, and the mortgagees, by John E. Kavanaugh, their duly constituted representative, took immediate possession of the mortgaged property and, pursuant to an agreement with- the mortgagor, proceeded to sell the same at private sale. Each mortgage, except the one to Gilmore & Ruhl, was, in express terms, subject to prior liens. On November 25, 1892, the whole of the property in possession of Kavanaugh, as agent of the mortgagees, was seized by W¡ H. Ryan, as sheriff of said county, under an order of attachment issued in an action brought by William Tackaberry & Co. against Smith in the district court. Gilmore & Ruhl thereupon commenced this action of replevin and, under an order of delivery issued therein, again obtained possession of the mortgaged property. The subsequent mortgagees became parties to the suit by intervention. By agreement between the litigants the cause was fried to a referee, upon whose findings judgment was rendered against the defendants. The petition in error contains thirty-four assignments, but we will notice only those relied on in the brief of counsel for defendants.
It is next insisted that all .the proceedings in the foreclosure of the mortgages were void for want of conformity with the provision of the statute requiring a not! ci1 of the sale to be published or posted for a period of twenty days. We neither perceive the relevancy of this proposition nor concede its Soundness. It must be remembered that this was an action of replevin. The main question to be decided — the question to which all others -were subordinate and incidental — was the right of possession of the property at the time the action was commenced. That issue was to be determined on the facts as they existed at the beginning of the suit. (Gillespie v. Brown, 10 Neb. 157; Kay v. Noll, 20 Neb. 380; Fischer v. Burchall, 27 Neb. 215; Kilpatrick-Koch Dry Goods Co. v. Strauss, supra.) The mortgages being valid, they vested in the plaintiffs and interveners a right of possession Avliich could not be lost by any mere irregularity in the manner of conducting the sale. Besides, the defendants, having no lien on the property at the time the agreement was made to waive the statutory notice of sale, are not in a position to question the validity and effectiveness of that agreement. As general creditors of Smith they could not assert a right in the property which he had previously, and in good faith, surrendered to other creditors.
Another complaint of the defendants is based on the action of the referee in permitting the plaintiffs to amend their petition by alleging a special instead of a general ownership of the property. That such an amendment was proper is settled by the cases of Strain v. Savage, 55 Neb. 687, and Welch v. Milliken, 57 Neb. 86; and that the referee had power to authorize it appears from the fact shown by the record that he was, with defendants’ consent, “empowered to pass upon the questions of fact and of law, and to pass upon all questions involved in said case the same as though said case was tried by the court.”
Affirmed.