Gillespie v. Brown & Ryan Bros.

Reese, J. This is an action of replevin. The suit was instituted by the defendants in error who claimed the possession of the property in dispute by virtue of a chattel mortgage executed by Caroline A. Van Meter and Edward A, Van Meter to secure the payment of certain promissory notes. The mortgage was executed on the first day of June, 1882, and a copy was filed in the office of the county, clerk on the fifth day of the same month. The plaintiff in error, who was defendant fcelow, claimed the possession of the property by virtue of. a levjr of an order of sale thereon in certain attachment proceedings in the county court of Lancaster county. These attachment proceedings were commenced on the sixth of June, 1882, and the levy of the order of attachment was made on the seventh. The district court referred the case to a referee, who took the testimony and reported to the court his findings of fact and conclusions of law. The findings were, in the main, in favor of defendants in error. The plaintiff in [459] •error filed exceptions to the report of the referee, and a motion for a new trial. The defendants in error filed a motion to modify the rulings and findings of the referee, and for confirmation of the report as thus modified. The exceptions and motion of the plaintiff in error were 'overruled. The motion of the defendant in error to modify the findings was sustained, and the report of the referee as modified confirmed, and judgment entered in favor of defendants in error. The plaintiff in error seems to concede the right of the district court to modify the rulings and findings of a referee, but insists that the court erred in modifying it in certain particulars, which are stated in his brief. Without stopping to enquire as to the' power of the court to make the modifications complained of, our first attention will be given to the enquiry presented. The plaintiff in error insists that the court erred iñ so modifying the report of the referee as to give the defendants in error judgment for the value of three piano trucks, which was found by the referee to be forty dollars. Upon this part of the case the referee reported specially as follows: “ That the two piano trucks described in plaintiff’s mortgage were, prior to the bringing of this action, in the hands of the defendant, and while in his hands plaintiffs demanded possession of the goods under the mortgage, but that prior to the commencement •of this suit the piano trucks were returned to E. A. Van Meter, judgment debtor, and plaintiff’s mortgagor. That the value of the trucks was $40,00..” This special finding being in the nature of a special verdict, it was competent for the court to render judgment thereon, in conformity with section 294 of the civil code, which is as follows: “When the special finding of facts is inconsistent with the general verdict, the former controls the latter, and the ■court may give judgment accordingly.” Upon this particular feature of the case the special finding of the referee had the effect of a special verdict. Sec. 300, Id. Under [460] this finding, the property not having been taken, it was competent for the action to proceed as one for damages. Sec. 193, Id. In this the court did not err. It is next insisted that the court erred in so modifying the report as to admit in evidence certain depositions and records which tended to prove that the property in dispute' was exempt to the mortgagors at the time of the execution of the mortgage to the payee of the promissory notes secured by the mortgage, as there was no issue of that kind before the court. While we think it must be conceded that the referee erred in rejecting this evidence, yet his findings of fact were against the plaintiff in error, and those findings were supported by the evidence which he did admit, therefore we fail to see where the plaintiff in error could be prejudiced by the action of the court in that behalf. If the property was exempt from execution it was no affair of the creditors as to what disposition "Van Meter made of it. He could keep it or sell it as he might prefer. He could transfer it to his wife, as in this case, either by sale or gift, and her. title would be good. If she had a good title she could mortgage it, and her title would inure to the benefit of the mortgagee. Anderson v. Odell, 16 N. W. Rep., 870. Boggs v. Thompson, 13 Neb., 404. Derby v. Weyrich, 8 Neb., 174. It is claimed that “ the right of a debtor to hold certain personal property is a mere personal privilege, and cannot be used by strangers.” This is true. But the record discloses that the execution defendant, Van Meter, availed himself of his personal privilege, procured this particular property to be set off to him, and then transferred it to his grantee. Clearly there was no prejudicial error in the ruling of the court. There is no question made as to the bona fides of the mortgage held by defendants in error. The proof shows and the referee finds that the amount secured by the mortgage was justly due on the notes, but it is claimed that the [461] mortgagee failed to file a true copy thereof in the office of the county clerk, as required by section 14, chapter 32, of the Compiled Statutes, and that the mortgage is void as to creditors. The basis of this claim is, that the copy filed in the office of the county clerk provides that if default be made in the condition of the mortgage, the mortgagee may take possession of the property, and after giving at least twenty days’ notice of sale, sell it at public auction. In the original the word “twenty,” which was printed in both blanks, was erased, and the figure “5” substituted. The question thus presented is, whether or not the filing of the copy is a sufficient compliance with the statute. The evident object and purpose of the statute in requiring a copy to be filed is to give notice of the existence of the mortgage, together with its terms and conditions, that creditors, purchasers, and lien holders may know the amount due, to whom, and when due. In other words, to apprise them of all the material conditions of the contract, "so that holders of after acquired interests and creditors may be apprised of the exact interest of the mortgagee and the extent of the retained title of the mortgagor. When this is done we think the law is complied with. But it is contended that as the statute provides that a notice of at least twenty days must be given before sale can be had, it was not competent for the parties to fix upon a shorter time. However that might be, if the question was between the parties to the mortgage, it is wholly unimportant here, as the question of foreclosure is not involved in this case, and were the question material it is quite difficult to see how that could affect the whole mortgage. That particular clause might be void, be overridden by the statute, and yet the mortgage be good. But we are of opinion that the discrepancy was wholly immaterial, and that the referee was correct in so finding. A number of cases are cited by plain tiff in error in support of the opposite view, but we-find none of them in point. [462] In Ely v. Carnley, 19 N. Y., 496, it was held that a mistake of one hundred dollars in copying the amount of the indebtedness was not a compliance with the statute, as-it did not advise creditors and subsequent purchasers and lienholders correctly in an essential point. But the court, says, “A trifling mistake in the copy filed might not vitiate, upon the principle that the law will not regard trifles.” The copy filed was a sufficient copy of the mortgage. It was filed before the levy was made by plaintiff in error. He therefore was charged with notice of the rights of defendants in error. It is claimed that the equity of redemption in mortgaged personal property might be levied upon and sold under execution. This might be true, and yet it would not deprive the moi tgigee of the right of possession which his mortgage gave him. It is also claimed that the proof shows a surplus in the hands of the defendants in error, and if their mortgage be held valid the plaintiff in error should, by virtue of his levy, have a lien on such surplus. That question cán not arise in this case. The contention is only for the possession of the property. If the property was subject to the levy made by the plaintiff in error, he thereby acquired an interest to the extent of the judgment upon which the order of salé had issued, but subject to the lien and right of possession of the defendants in error, so long as their mortgage remained unsatisfied. Had the plaintiff in error sought to avail himself of his rights in this respect by tendering to the defendants in error the amount due them on their mortgage, or by proc ess óf garnishment, or by any of the other available methods provided by law, the case might have been one in which his rights could be protected, but such a case is not presented. The judgment of the district court is affirmed. Judgment affirmed. The other judges concur.