69-109. Security interest; personal property; sale or transfer without consent; penalty.
Any person who, after having created any security interest in any article of personal property, either presently owned or after-acquired, for the benefit of another, shall, during the existence of the security interest, sell, transfer, or in any manner dispose of the said personal property, or any part thereof so given as security, to any person or body corporate, without first procuring the consent, in writing, of the owner and holder of the security interest, to any such sale, transfer or disposal, shall be deemed guilty of a Class IV felony.
Source
Annotations
1. Constitutionality
2. Sale with consent of mortgagee
3. Sale without consent of mortgagee
4. Criminal responsibility
1. Constitutionality
Section is not in conflict with Article I, section 9, Constitution of Nebraska. State v. Heldenbrand, 62 Neb. 136, 87 N.W. 25 (1901).
2. Sale with consent of mortgagee
In a prosecution for the unlawful sale of mortgaged property without the written consent of the mortgagee, oral consent of the mortgagee to the sale, coupled with payment of the value of the property, is a defense. Mullins v. State, 146 Neb. 521, 20 N.W.2d 385 (1945).
Sale by mortgagor under agreement with mortgagee for application of proceeds on mortgage debt is equitable assignment of proceeds. Lathrop v. Schlauger, 113 Neb. 14, 201 N.W. 654 (1924).
Where sale is made with consent of mortgagee, mortgagor is agent of mortgagee. State ex rel. Davis v. Brown County Bank of Long Pine, 112 Neb. 642, 200 N.W. 866 (1924); Farmers State Bank of Petersburg v. Anderson, 112 Neb. 413, 199 N.W. 728 (1924); Farmers State Bank of Stella v. Home State Bank of Humboldt, 106 Neb. 711, 184 N.W. 170 (1921).
Mortgagee waives his lien where sale is made with his consent by mortgagor. Warrick v. Rasmussen, 112 Neb. 299, 199 N.W. 544 (1924); Seymour v. Standard Live Stock Comm. Co., 110 Neb. 185, 192 N.W. 398 (1923); Gosnell v. Webster, 70 Neb. 705, 97 N.W. 1060 (1904); Drexel v. Murphy, 59 Neb. 210, 80 N.W. 813 (1899).
Mortgagor may contract for future sale and disposition of property. Morris v. Persing, 76 Neb. 80, 107 N.W. 218 (1906).
3. Sale without consent of mortgagee
Mortgagee may recover payment of one who sells property subject to mortgage without notice. Caproon v. Mitchell, 77 Neb. 562, 110 N.W. 378 (1906).
Mortgagee, without knowledge of unauthorized sale, does not ratify by accepting proceeds. Gosnell v. Webster, 70 Neb. 705, 97 N.W. 1060 (1904).
A mortgagee of chattels will be held to have ratified an unauthorized sale of the property by knowingly receiving and retaining the proceeds of sale. Ayers v. McConahey, 65 Neb. 588, 91 N.W. 494 (1902).
Mortgagee may either disavow the sale and retake property or ratify it and recover proceeds of sale. Burke v. First Nat. Bank of Pender, 61 Neb. 20, 84 N.W. 408 (1900).
4. Criminal responsibility
Although section does not expressly require fraud, judicial construction of the section has established that proof of fraud is required for a conviction thereunder. It is presumed that when a statute has been construed by the Supreme Court, and the same is substantially reenacted, the Legislature gave to the language the significance previously accorded it by the Supreme Court. State v. Hocutt, 207 Neb. 689, 300 N.W.2d 198 (1981).
Conviction of disposing of mortgaged personal property sustained. Pulliam v. State, 169 Neb. 661, 100 N.W.2d 704 (1960).
Law was enacted to prevent fraudulent transfer of mortgaged chattel property. Pulliam v. State, 167 Neb. 614, 94 N.W.2d 51 (1959).
Information is not fatally defective because it fails to allege name of person or body corporate to whom sale or transfer was made. Hunt v. State, 143 Neb. 871, 11 N.W.2d 533 (1943).
In prosecution hereunder accused may show as defense (1) that full value of mortgaged chattel has been turned over to mortgagee or (2) that the mortgage debt has been paid. Fiehn v. State, 124 Neb. 16, 245 N.W. 6 (1932).
Wrongdoer cannot be convicted in Nebraska on sole charge of selling mortgaged property when actual sale occurred in Iowa. Forney v. State, 123 Neb. 179, 242 N.W. 441 (1932).
Mortgage upon unplanted crop is invalid as basis of conviction of tenant in case he sells crops not planted at time the mortgage in lease was executed. Nelson v. State, 121 Neb. 658, 238 N.W. 110 (1931).
Lien on properly identified crop extends to harvested crop unless otherwise provided, and it is a crime to sell same. Eigbrett v. State, 111 Neb. 388, 196 N.W. 700 (1923).
Statute contains all the elements of the crime for which it is sought to provide punishment, and criminal intent is not an essential ingredient of the offense. State v. Butcher, 104 Neb. 380, 177 N.W. 184 (1920).
Section applies to sale to partnerships. State v. Stapel, 103 Neb. 135, 170 N.W. 665 (1919).
Sale of mortgaged property without mortgagee's consent is punishable. Wilson v. State, 43 Neb. 745, 62 N.W. 209 (1895).
To constitute offense, the sale of the property must have been made by the mortgagor during the existence of the mortgage lien without the written consent of the owner and holder of the debt secured by the mortgage. State v. Hughes, 38 Neb. 366, 56 N.W. 982 (1893).
Information need not allege intent. State v. Hurds, 19 Neb. 316, 27 N.W. 139 (1886).
Structure Nebraska Revised Statutes
Chapter 69 - Personal Property
69-109 - Security interest; personal property; sale or transfer without consent; penalty.
69-110 - Security interest; personal property; removal from county; penalty.
69-202 - Permit required; fees; application, contents; issuance; bond.
69-203 - Permit; business location; prohibited activities.
69-204 - Records required; inspection; stolen property; procedures.
69-205 - Reports to police; when required.
69-206 - Pawned or secondhand goods; restrictions on disposition; jewelry defined.
69-208 - Violation; penalty; permit; suspension or revocation; procedure.
69-209 - Pawnbroker; limitation on sale of goods.
69-210 - Pawnbrokers; customer fingerprint required; restrictions on property accepted.
69-303 - Ophthalmic provider; contact lens prescription.
69-304 - Ophthalmic provider; registration; requirements.
69-307 - Rules and regulations.
69-310 - Contact lenses or spectacles; prescription; contents; release to patient.
69-311 - Operation of kiosk; conditions.
69-312 - Over-the-counter spectacles.
69-314 - Rules and regulations.
69-403 - Peace officer; right to inspect property and records.
69-404 - Secondary metals recycler; limitations on payment.
69-405 - Seller; age restriction; identification required.
69-406 - Limitation on metal beer keg purchase or receipt.
69-406.01 - Manhole cover or sewer grate; purchase or receipt; limitations; payment.
69-409 - Sections; how construed.
69-505 - Marking; inspections.
69-507 - Tax Commissioner; power to inspect; notice to State Fire Marshal.
69-508 - Attorney General; enforcement powers.
69-510 - Termination of act; conditions; preemption of local law.
69-511 - State Fire Marshal; rules and regulations.
69-1002 - Sale at auction; containers; labels; statement required.
69-1003 - Sale at auction; false statements; liability.
69-1004 - Sale at auction by carrier; when act inapplicable.
69-1005 - Violations; penalty.
69-1006 - Poultry; sales record; exceptions.
69-1007 - Poultry; sales record; violation; penalty.
69-1008 - Poultry; sale or delivery; false representations; penalty.
69-1102 - Violations; penalty.
69-1202 - Debt management; exceptions to act.
69-1204 - License; application; fees; bond; expiration; copy of contract.
69-1205 - License; application; investigation; issuance.
69-1206 - License; renewal; fee; bond.
69-1207 - License; Secretary of State; deny; revoke; suspend; nontransferable.
69-1208 - Rules and regulations; promulgation.
69-1209 - Licensee; contract with debtor required; contents.
69-1210 - Licensee; bank account; separate; books and records.
69-1211 - Licensee; examination; cost; payment.
69-1212 - Licensee; debtor; fee; agreement; limitations.
69-1214 - Licensee; acts forbidden.
69-1215 - Unlawful acts; penalty.
69-1216 - Limitation of actions.
69-1303 - Unclaimed funds held and owing by a life insurance corporation; presumed abandoned; when.
69-1304 - Funds held or owing by any utility; presumed abandoned; when.
69-1305 - Stock, shareholding, or other intangible ownership interest; presumed abandoned; when.
69-1305.01 - Stock or other intangible ownership interest; applicability of act; conditions.
69-1305.02 - Credit memo; presumed abandoned; when.
69-1305.03 - Gift certificate or gift card; presumed abandoned; when.
69-1307.02 - Unpaid wages; presumed abandoned; when.
69-1307.03 - Retirement funds; presumed abandoned; when.
69-1307.04 - Mineral rights and proceeds; presumed abandoned; when.
69-1307.06 - Military medal; report and delivery to State Treasurer.
69-1307.07 - Military medals; State Treasurer; duties.
69-1308 - Other intangible property; general-use prepaid card; presumed abandoned; when.
69-1309 - Owner in another state; property not presumed abandoned; when.
69-1311 - Report of property presumed abandoned; notices; time; contents; exceptions.
69-1312 - Delivery of property to State Treasurer; exceptions.
69-1314 - Property paid or delivered to State Treasurer; owner not entitled to income.
69-1315 - Limitation of action; claim; effect.
69-1316 - Abandoned property; State Treasurer; sell; when; notice; title.
69-1318.01 - Payment with respect to support order obligor authorized.
69-1319 - Claim; hearing; decision; payment.
69-1320 - Claim; appeal; procedure.
69-1322 - Failure to report property; State Treasurer; powers and duties; holder; duties.
69-1323 - Refusal to deliver property; action to enforce delivery.
69-1324 - Failing to render report or refusing to pay or deliver property; penalty.
69-1325 - State Treasurer; rules and regulations; adopt.
69-1326 - Property exempt from act.
69-1330 - Certain unclaimed property; disposition.
69-1331 - Unclaimed property; sale; disposal; procedure.
69-1332 - Unclaimed property; sale proceeds; disposition.
69-1501 - Retailer; contract; termination; reimbursement for implements, machinery, and parts.
69-1502 - Prices for implements, machinery, and parts; how determined.
69-1504 - Retail dealer; majority stockholder; death; settlement with heirs.
69-1602 - Disclosure obligations.
69-1603 - Right to cancel; manner of cancellation.
69-1604 - Notice of right to cancel; form; foreign language; when delivered; time; exception.
69-1605 - Cancellation, effect.
69-1606 - Duty of buyer; failure of seller to take possession; performance of service, how treated.
69-1607 - Sale made in violation of sections; buyer recovery.
69-1701 - Outdoor advertising sign; removal by public body; compensation; how determined; exception.
69-1702 - Nonconforming advertising sign; conformance required; when.
69-1804 - Manufacturer; provide information.
69-1805 - Supplier of turquoise; provide information.
69-1808 - Violations; penalty.
69-1903 - Distribution for promotional purposes prohibited.
69-1904 - Enforcement; penalty.
69-2002 - Definitions, where found.
69-2003 - Biodegradable, defined.
69-2004 - Degradable, defined.
69-2005 - Photodegradable, defined.
69-2006 - Recyclable, defined.
69-2008 - Beverage container connectors; requirements.
69-2009 - Garbage bags; requirements.
69-2010 - Grocery or shopping bags; requirements.
69-2011 - Disposable diapers; requirements; Director of Environment and Energy; duties.
69-2012 - Violations; penalty.
69-2102 - Legislative findings.
69-2104 - Lessor; disclosures required.
69-2105 - Disclosures; how made; rules and regulations; agreement; contents.
69-2106 - Written receipt; required; when.
69-2107 - Agreements; prohibited provisions.
69-2108 - Agreement; contents.
69-2109 - Lessor; prohibited acts.
69-2110 - Fees; deposits; charges.
69-2111 - Renegotiation; when; extension; effect.
69-2112 - Advertisement; requirements.
69-2113 - Lessor; liability; offset, not permitted; lessor; preserve evidence.
69-2114 - Actions; statute of limitations.
69-2115 - Lessor; not liable; when.
69-2116 - Director of Banking and Finance; investigations; other proceedings; powers.
69-2117 - Cease and desist order; fine; injunction; procedures; appeal.
69-2118 - Examination of books and records.
69-2119 - Personal jurisdiction over lessor.
69-2201 - Unsolicited goods or merchandise; disposal.
69-2303 - Personal property remaining on premises; landlord; duties; notice; contents; delivery.
69-2304 - Notice; statement required.
69-2306 - Landlord; property; removal and storage; liability.
69-2307 - Landlord; release of personal property; when.
69-2309 - Release or disposition of personal property; liability of landlord.
69-2310 - Costs of storage; how assessed.
69-2312 - Landlord retaining personal property; civil action authorized.
69-2313 - Lost personal property; disposition; liability.
69-2314 - Remedy; not exclusive.
69-2401 - Legislative findings and declarations.
69-2403 - Sale, lease, rental, and transfer; certificate required; exceptions.
69-2404 - Certificate; application; fee.
69-2405 - Application; chief of police or sheriff; duties; immunity.
69-2406 - Certificate; denial or revocation; appeal; filing fee.
69-2407 - Certificate; contents; term; revocation.
69-2408 - False information on application; other violations; penalties; confiscation of handgun.
69-2410 - Importer, manufacturer, or dealer; sale or delivery; duties.
69-2411 - Request for criminal history record check; Nebraska State Patrol; duties; fee.
69-2412 - Records; confidentiality; destruction.
69-2413 - Nebraska State Patrol; toll-free telephone number; personnel.
69-2414 - Records; amendment; procedure.
69-2415 - Records; rules and regulations.
69-2416 - Licensed importer, manufacturer, or dealer; compliance not required; when.
69-2417 - Nebraska State Patrol; licensee; liability defense; when.
69-2418 - Instant criminal history record check; requirements; exemptions.
69-2419 - Criminal history records; prohibited acts; violation; penalty.
69-2420 - False statement; false identification; prohibited acts; violation; penalty.
69-2421 - Sale or delivery; violation; penalty.
69-2422 - Obtaining handgun for prohibited transfer; violation; penalty.
69-2423 - Nebraska State Patrol; annual report; contents.
69-2424 - Rules and regulations.
69-2425 - City or village ordinance; not preempted.
69-2426 - Dealers of firearms; distribution of information; Firearm Information Fund; created.
69-2428 - Permit to carry concealed handgun; authorized.
69-2430 - Application; form; contents; prohibited acts; penalty; permit issuance; denial; appeal.
69-2431 - Fingerprinting; criminal history record information check.
69-2433 - Applicant; requirements.
69-2434 - Permit; design and form.
69-2435 - Permitholder; continuing requirements; return of permit; when.
69-2436 - Permit; period valid; fee; renewal; fee; notice of expiration.
69-2437 - Permit; nontransferable.
69-2438 - Limitation on liability.
69-2439 - Permit; application for revocation; prosecution; fine; costs.
69-2442 - Injury to person or damage to property; permitholder; report required.
69-2443 - Violations; penalties; revocation of permit.
69-2444 - Listing of applicants and permitholders; availability; confidential information.
69-2445 - Carrying concealed weapon under other law; act; how construed.
69-2446 - Rules and regulations.
69-2447 - Department of Motor Vehicles records; use and update of information.
69-2448 - License or permit issued by other state or District of Columbia; how treated.
69-2449 - Information to permitholder regarding lost or stolen handgun or firearm.
69-2503 - Conformity with industry standards; codes required; department; duties.
69-2504 - Violations; penalty; enforcement duties.
69-2506 - Administrative costs; limitation; payment.
69-2602 - Definitions, where found.
69-2603 - Assistive device, defined.
69-2604 - Assistive device dealer, defined.
69-2605 - Assistive device lessor, defined.
69-2606 - Collateral costs, defined.
69-2608 - Demonstrator, defined.
69-2609 - Major life activity, defined.
69-2610 - Manufacturer, defined.
69-2611 - Nonconformity, defined.
69-2612 - Reasonable allowance for use, defined.
69-2613 - Reasonable attempt to repair, defined.
69-2614 - Manufacturer; express warranty; requirements.
69-2615 - Manufacturer; consumer; assistive device lessor; duties.
69-2616 - Returned assistive device; resale or subsequent lease; lease; enforcement.
69-2617 - Rights and remedies.
69-2618 - Rental assistive device reimbursement; when.
69-2701 - Tobacco Enforcement Fund; created; use; investment.
69-2702 - Tobacco product manufacturer; terms, defined.
69-2703 - Tobacco product manufacturer; requirements to sell within the state.
69-2703.01 - Unconstitutionality of amendatory provision; effect.
69-2704 - Legislative findings.
69-2707 - Nonresident or foreign nonparticipating manufacturer; agent for service of process.
69-2708 - Stamping agent; duties; Tax Commissioner; Attorney General; powers.
69-2708.01 - Stamping agent; responsible for escrow deposits; when; liability; calculation.
69-2710 - Removal from directory; procedure.
69-2710.01 - Report; contents.