130 P. 288 | Okla. | 1913
It is insisted by plaintiff in error that the chattel mortgages executed by Henry Lehr to the Citizens' State Bank of Okeene, dated, respectively, January 11, 1908, and May 2, 1908, are void as to the plaintiff in error, who was a judgment creditor of the mortgagor at the time of the execution of said mortgages, because of the fact that one or both of the subscribing witnesses to said mortgages were officers and stockholders of the mortgagee bank; hence were interested parties and disqualified in law as witnesses. It is agreed in the stipulations that T. H. Grennell, one of the subscribing witnesses to each of the mortgages in question, was both an officer and stockholder of the Citizens' State Bank at the time said mortgages were executed. Said mortgages each had two subscribing witnesses; the first, in addition to the name of T. H. Grennell, was signed and executed in the presence of O. G. Graalman. The testimony as to the interest of these witnesses is not clear; but, in view of our conclusions, it is not material.
It will be observed that both mortgages were executed prior to the taking effect of the Act of May 22, 1908 (Sess. Laws 190708, p. 560; Comp. Laws 1909, sec. 4427), which expressly provides that a chattel mortgage may be either attested by acknowledgment before any person authorized to take acknowledgments of deeds, or it may be signed and validated by the signature of two persons not interested therein; and that mortgages so executed shall be admitted to record. The law in force at the time that the mortgages attacked were executed was section 3583, Wilson's Rev. Ann. St. 1903, which reads: *3
"A mortgage of personal property must be signed by the mortgagor in the presence of two persons, who must sign the same as witnesses thereto, and no further proof or acknowledgment is required to admit it to be filed."
In Watts v. First Nat. Bank,
"The statute makes no express limitation or prohibition as to any class or kind of persons who shall act as witnesses. It is silent as to the interest or lack of interest of the witnesses; and the only requisite expressly required is that it shall be signed by two persons as witnesses, and, when this is done, it shall be admitted to filing in the office of the register of deeds."
The question was next before this court in Farmers' StateBank et al. v. Spencer,
"Now this seems to be the only requirement [referring to the statute] and the only limitation placed upon the subject by the Legislature; and it does not seem to us that the court should add to, detract from, or require other or different qualifications, on the part of such witnesses, than such as the Legislature in its wisdom has seen fit to prescribe."
The action of the trial court in excluding the mortgage from evidence, for the sole reason that it was witnessed by a stockholder of the bank, was held to constitute reversible error. In Kee v. Ewing et al.,
The rule announced and followed by the territorial Supreme Court does not commend itself to the writer of this opinion and, we believe, is contrary to the weight of authority; but, having been followed by that court for more than eighteen years, we hesitate to announce a contrary rule, particularly in view or the fact that the objection has been met by the Legislature, and the mischiefs and abuses to which continued recognition of the rule might lead were, by the Act of May 22, 1908, supra, fully obviated.
The other errors assigned, not being argued, are deemed to have been waived. The judgment of the trial court should therefore be affirmed.
By the Court: It is so ordered. *5