*1 alienation, plaintiffs they not contend, and thus are considered need not here be policy against common law decided. violate the suspension.” unduly prolonged Defendant Assign ment in performed Trust was not within a essence, philosophy which In reasonable time and hence was unenforce country prompted has the courts able, that it was supported by adequate invoke the mentioned rule is the inherent consideration, there being mutuality no of. dangers clogging which come from the obligation and consideration, no and that us, alienability. In the case before it is specific performance was not available as principal conceded and in fact is one of the remedy. Each such defense is one contentions of defendant that the trustee contract, enforcement of a and all of' this case has the ministerial duties presented authorities here relate to that proceeds royalties collecting ' subject. It is clear that distributing them. The trustee has bare contract, not a but was an executed trans legal only. beyond question It is clear action to which none of apply. such defenses equitable that the title to the beneficiaries is Scott, Trusts, pp. alienable. It is stated in 2 We find no error in the judgment of the ed.): (2 trial court. England “Both in and in Affirmed. the United today States it is clear that the bene- trust,
ficiary of a if he is not under a incapacity,
legal can transfer in- his trust,
terest under the unless his
terest is made inalienable the terms by statute, the trust or unless his
interest is of such a that it character transferred, as, example, cannot be BANK, CHEYENNE corpora NATIONAL tion, Appellant (Defendant below), personal where the trust is for his support, discretionary or is a trust. * * * [Quoting BANK, from a cited corporation, CITIZENS SAVINGS case:] Appellee (Plaintiff below). subject ‘Trust estates are to the same incidents, properties consequences No. 3209. as, circumstances, belong under like Supreme Wyoming. Court of They similar estates at law. alien- May 7, 1964.
able, devisable, and descendable in the ” manner.’ same recognized approved This view is in 1 Restatement, Second, Trusts,
A.L.I.
(1959). For all the defendant has shown
here, legal royal- the fact of the title to the remaining way
ties in the bank in no con- policy public
flicts with the
responsible for the rule restraints undoubtedly alienation. it was ill While Assignment
advised that the in Trust was termination, provision
drawn without why
there is valid reason the lack there- arrangement. vitiate the Wheth- should
er or not the trust could be terminated
accordance of A.L.I.
Restatement, Second, (1959), Trusts
¾34' Phelan, Phelan, Guy, White B.
Walter Mulvaney, Cheyenne, appellant. & Henderson, Uchner, God- David D. Kline, Cheyenne, appellee. frey & PARKER, J., Before and HARNS- C. BERGER, GRAY, McINTYRE, JJ. McINTYRE delivered the Mr. Justice opinion of the court. have been asked to contro-
We resolve a versy respect between two banks priority respective of their liens on Action identical vehicles. brought under the the Uni- Declaratory Judgment Act, form §§ W.S.1957. There is no material dispute question to the facts primarily volved is one of law. agree Bryan, Parties that H. B. anas ac- having commodation maker and without interest, ownership what- O’Dell, soever, gave executed and to Jack owner and holder Mack true of two trucks, purported dump a note and chattel $28,000 mortgage in the amount of cover- day, ing trucks. On the same March actually O’Dell who owned assigned mortgage to vehicles the note and Bank, Cheyenne defendant. National days purported mortgage five Within assignment and the thereof in the were filed County office of the Laramie Clerk of County. No endorsement of the encum- by Cheyenne brance thus held National placed Bank was on the certificates of title for the trucks involved. payments
O’Dell caused be made on assigned note for several months. Then, on October about seven making after de- months fendant-bank, $25,000 O’Dell" borrowed Bank, plaintiff, at from Citizens security gave he Denver. therefor mortgage covering the same two chattel as between the in the described' trucks persons having him that transaction and all assigned previously gage instrument transaction, of such it was not Cheyenne bank. to the *3 binding purchasers on bona fide en- proceeds its loan paying the Before cumbrancers. O’Dell, bank caused the Denver over to the office of filed in the mortgage Constructive Notice County, Wyo- County Laramie Clerk of There 'is no contention that Citizens the lien to be endorsed ming, and caused Savings had actual knowledge the lien respective certificates of title the by Cheyenne claimed National. We are of title trucks. The certificates each of the therefore concerned question by bank. No held the Denver were then as to whether it had constructive notice thereon. been endorsed liens had other by reason of filing Bryan court held October The district gage. by held Citizens mortgage At the time the instrument and as- superi- lien to be a first Bank signment filed, which was within five Cheyenne National Bank. that of or to days after execution, their Cheyenne Na- accordingly and Judgment was rendered tional only party was the pos- which could ap- Cheyenne has the defendant-bank sibly claim to be a lienholder. The law pealed. then in (§ effect required 31-37(f)) W.S.19S7, 37(f), which Section 31— holder of an encumbrance to file or re- assignment appellant took its when in effect cord such- encumbrance within days. five O’Dell, owner of provided that from There was also a provision requir- further who had a certificate vehicle a motor ing that the lienholder concurrently” “shall encumbered the vehicle who title and deliver the certificate of county to to the the certificate holder should deliver clerk, who then duty had the to endorse on days Within five such encumbrance. the face of appropriate the certificate nota- required to file or lienholder tions concerning the encumbrance. his lien in the office of record previously We have held constructive “concurrently” deliver to clerk and entirely recording notice to be a matter The to the clerk. certificate of title dependent upon Torgeson statute. Con to en- in such a case clerk was nelly, Wyo., 348 P.2d Dame v. on the certifi- a of the lien dorse notation Mileski, P.2d cate of title. Therefore, appellant’s argues counsel excuse offers no Counsel filing Bryan mortgage consti Cheyenne failure of the bank for the law tuted constructive notice because the provision. He comply with this provide must be the encumbrance failed because it makes no difference stead put a on the certificate of title to noted question pro- law did not at the time notice, buyer logic in he has his reverse. the encumbrance must be noted vide that filing compliance recording It is title, put in order “to on the certificate of notice which causes constructive statutes buyer encumbrance.” on notice of such statutory declara- to be effective and controlling argument legal The We do not consider effect. pro- (1) pertinent reasons: to this case of counsel tenable for these statute at times cer- filing delivery of the recording or an instrument for concurrent vided mortgage unless chattel never constitutes constructive notice tificate of title when a filed, appellant failed recording and pertaining a motor vehicle is statutes with; comply requirement. w.e complied although with that (2) are case and purported mortgage given by pointed Torgeson in the out Roth, may Wyo., ownership Thomas (without possession) Validity Mortgage pertaining laws makes the legislature flows recording, and constructive Appellant that, suggest if seems even then be no construc- There can therefrom. Bryan was not the owner of the two trucks recording by recording until tive notice question, such fact would not render complied fully with. statutes mortgage his and the thereof ap- rule is for this very good reason A is, course, authority invalid. There case. We know instant parent in the the statement made in 14 Chattel C.J.S. giving statutory provision for Mortgages pp. cited than the by one other chattel by appellant, to the effect that such a mort- *4 property. Sec- personal holder of owner or gage, if made with the consent of the true W.S.1957, at the 34-242, as it existed owner, may be valid “as between the involved, pro- here the transactions time of persons and as all having knowl- person to a lawful for it was that vided However, edge of the transaction.” “owned, oc- property personal mortgage party Citizens Bank was not a to mortgagor. of the possession” cupied or in the transaction and it had no provided W.S.1957, further Section thereof. recording upon filing or 1961) that (in Thus, C.J.S., supra, the rule 14 stated in indexed mortgage be it should a of such 614, p. wholly applicable. is is It index, name mortgage with the chattel mortgagor effect that a chattel can con being entered. mortgagor vey by mortgage that interest which possesses property, ordinarily not he in a was as Inasmuch mortgage mortgagor give in cannot a valid not and was owner property which he does own or nothing but a fraudulent property, possesses mort he Butin be entered as which interest. See could name fictitious Rothman, 477, 783, purpose, least one 312 P.2d or at v. 135 Colo. gagor. Thus 784; American Standard Motor Co. v. purposes, of with Inc., expressed System, 311, in Haw 120 209 P.2d Loan Colo. was defeated. clerk 452, 264, 265; Fornea, 226, La.App., Staffers, Wyo. P. Hale v. 79 So. 40 276 kins v. Ellis, recording 124, 126; Stanley Ga.App. design 2d v. 77 278 P. transactions, prevent fraud 47 778. S.E.2d laws is to not be construed so laws should and such purposes For of our case it is suffi fraud, prevent it. as to but so produce as to say property mortgage that a cient Roth, supra, P.2d at 386 In Thomas v. mortgagor or in which the does not own reviewed the fact that Chief we Justice possesses he no interest is not valid which Connelly, supra, at Torgeson Parker in v. purchaser or encum- a bona fide authority had held 348 P.2d value, irrespective which brancer for re- acknowledgment if is that the effect Bank of is See transaction time. recordable, quired an instrument is before Mo.App. Clayton, 245 241 Kennett acknowledg- an without then recordation Livestock Loan Wasatch S.W.2d constructive notice not afford ment does Sharp, 35 P.2d 84 Utah v. Lewis & Co. instru- contents of the existence and 835, 841-842; Mort Chattel C.J.S. proper just as reasonable ment. It is 294, p. gages 932. delivery of say concurrent that when case being clear in the instant It of title to a certificate not have not own and did did thereon, is re- appropriate notation pur he the vehicles which possession filing or re- quired in connection additionally that ported mortgage, and ve- such cording mortgage on of a chattel comply Bank did not Cheyenne National delivery hicle, filing without then a statutory requirement deliver with afford constructive would not title to the ing certificates mortgage. thereon, we filed were so The appropriate notations filed. burden was on clerk subsequent to show plaintiff became that its compelled hold that gages protection were entitled to value under the fide encumbrancer a bona Francis, a I. statutes. C. T. constructive notice actual nor neither Wyo. opin- mortgage held defend- The prior lien. McIntyre ion holds was ant-Cheyenne National therefore Justice encumbrancer, appellee proved met burden was fide such bona as to valid appellant’s the lien was not judgment the district court shown on the title. certificates of proper. holding My disagreement with such
Affirmed. First, contrary previous to a it is twofold. PARKER, concurring. Mr. Chief Justice Reina in Barber v. holding of this court the result in this case I concur with Co., Motor Nash purported mort- ground the sole a late filed chattel there held that give mortgage would gagor cannot motor vehicle would mortgage covering a *5 parties property valid as third be filing against date of from the be enforced pos- in he does not own or which he others, creditors, among lien subsequent no sesses interest. noted though the was not encumbrance even time the of title the on the certificate GRAY, concurring. Mr. Justice Secondly, the con mortgage was filed. as sub- in result. Inasmuch I concur the per provisions plain struction the pre- specifically sequent legislation now mortgage lien on chattels fecting a chattel per- procedure special mode of scribes a were not effec generally under 34-248 § vehicles, little would fecting liens on motor event the chat and self-sufficient in the tive my gained by expressing views seem in a motor vehicle is unwarranted tel was However, I am us. in matter before the Credit, 74 my opinion. Fogle v. General pronouncements of not in accord with App.D.C. 122 F.2d 136 A.L.R. con- opinion concerning the matter of Adjusting Rating & Co. and Merchants appellee; notice to and because structive Skaug, 4 Wash.2d possibility that other claims under W.S.1957, 37(f), or other Section 31 — affected, I desire might be former statutes provision Act did of the Title Certificate briefly to the circumstances comment year agree I that in not so state. would this case. might it well have been advanced that appellant mortgages the time the At legislature (f) intended 31-37 filed, and W.S. were §§ respect, supersede in this but that 34—248 1957, relating perfecting generally to the longer seems Sec construction tenable. liens, full were in of chattel by 31-37(f) repealed since been 34-248 a mort- force and effect. Under § Wyoming, Ch. Session Laws of proper in when filed with the gage form provisions although all former and in “take effect and be county clerk would re-enacted, substantially 37(f) were it § 31— delivering time from and after the force provisions significant is to note that those filing be- and not the same the clerk augmented by following im fore, pur- subsequent as to all creditors portant language: chasers, good in faith for mortgagees 9-302(4) “Section That Section and without notice valuable consideration Chapter Wyo- Laws of Session ”* * * say mortgage so we Whether ming, be amended re-enacted filed constructive notice or voids constitutes as follows: subsequent mortgagees lien of is “(4) steps required per- significance. The Two little results 'are (cid:127) security mortgages appellant fection of a interest in a mo- Here the same. proper in were be tor vehicle to be licensed. form and entitled to security “(a) financing imputed A statement Was and it has not met agreement must filed in be the office of its burden on this score.
thé
clerk of the
in which
holding
Nevertheless,
agree
I
with the
-
located;
said
is
vehicle
must
of the trial
judgment
court
Statutory
conferred
be affirmed.
benefits
"(b)
security
A notation
interest
by filing the encumbrance
mortgagee
on a
must be endorsed on the certificate of
.
may
be
or nullified
other conduct
title
lost
to such
en-
motor
the transaction.
is
concurrently
connection with
dorsement
made
be
applied in
vehicle
familiar rule often
financing
state-
financing
two innocent
“that where one of
security agreement.
ment or
through
wrongful
must suffer
“ *
* *
Every financing statement
party,
possible
act of
third
he who made
pur-
security agreement when filed
'or
wrongful
act must be the one to bear
of the herein
suant to
Credit
burden.” General
9-302(4)
take
shall
effect
Section
1,Wyo.
Cody,
v. First National Bank of
after the time
be in force from and
before,
credi-
filing and not
as to all
ample
There
show
record
tors,
hold-
subsequent purchasers, and
part
inattention and carelessness on the
security
faith
ers'
interest
present
brought about the
diffi-
with-
for valuable consideration and
culty.
its
to see
Most obvious was
failure
out notice.”
was transferred to
*6
description
lien instru
change
noted on the
Had
encumbrance
certificate.
security inter
ment from encumbrance
done,
been
that
O’Dell would
Com
est, etc.,
the Uniform
to conform to
clothed with indicia of clear title which
noted, but
will of course be
wholly
appellee.
Code
mercial
misled
Add to this
arrangement
Bryan
between
and O’Dell
changes
made
the. effect of
§
( n f) clear.
whereby
legisla
Company
Motor
retained
For the first time the
O’Dell
ostensibly
possession
part
a mo
of the trucks
as a
that an encumbrance
ture Has said
trade,
entrapment
its
perfected against subse
stock in
vehicle was not
tor
appellee
complete.
To overcome
quent
“in
faith for valu
was
lienholders
course,
aspect
appellant,
matter
un
and without notice”
able consideration
cer
had
appears
it
less notation thereof
legis O’Dell-Bryan arrangement. Assuming this
result is that the
title. The
tificate of
true,
plain
despite fact is that
31-37 to be
has
former
lature itself
construed
money
made
compliance
large
involved it
therewith
amount
(f)'
imposing
as not
concerning
facts
no effort to ascertain the
perfecting an encum
prerequisite
as' a
simply
possession
and was content
such title
a motor
and while
brance on
rely
us,
representations
of both
binding
I
should to
fact
think we
is not
doing this
took the
legislative intent
In
it
speculate “upon
O’Dell.
not' here
genuine
transaction
risk
put
con
Legislature
where
own
its
consequently
carry
Equi
enactments.”
struction on
risk
became
burden of that
States
table
Assur.
United
Life
Soc.
1223,
v.
63,
Credit
involved. General
Thulemeyer, 49
v.
Kapun,
App.Div.
262
appeal
237
N.Y.S.
1234, rehearing
54
denied
easy
relatively
have been a
423.
would
Equitable Life Assur.
Ham v.
dismissed
States,
matter
to have ascertained
57
299 U.S.
Soc. of the United
had
Wyman,
represented,
See also
O’Dell and the certificates of
session of trucks
title, estopped advance would be appellee.
claim See Annotation through Appellant
A.L.R.2d 816. claims
Bryan, and be held as a result must likewise estopped to advance its claim
appellee. Fidelity Brown v. Union Trust
Co., 325; N.J.Eq. 9 A.2d Tro Rogers,
lan v. 88 Hun. 34 N.Y.S. Estoppel, Am.Jur., and 19
Seymour THICKMAN, Knox, William R. Appellants below), (Plaintiffs (Plaintiff below), H. MacLean
Richard SCHUNK, Appellee (Defendant below).
W. F.
No. 3224.
Supreme Wyoming. Court
May 8, 1964.