5 Indian Terr. 83 | Ct. App. Ind. Terr. | 1904
On the trial of the case in the District Court the appellee introduced evidence tending to prove the following facts, to wit: That on December 20, 1900, plaintiff sold to defendant Davis two mares for the sum of $207.47, and he executed a note for said sum, due October 1, 1901, with interest at 10 per cent, .from date, secured by chattel mortgage on the animals and other personalty, including certain 40 acres of cotton. ■ That afterwards, to wit, on March 11, 1901, plaintiff loaned to Davis the sum of $87, for which Davis executed a note due October 1, 1901, with interest at 10 per cent, from date, and thereafter, on July 8, 1901, plaintiff loaned to Davis $72 in cash, for which he executed his note to plaintiff, due October 1, 1901, with interest at 10 per cent, from date. That the following credits appear on said notes, to wit: First note, the following
Appellants make four assignments of error, complainingin the first, second, and third assignments of error that the court refused to give to the jury certain instructions set out in said assignments. In the fourth assignment of error complaint was made that the court did instruct the jury, over the objection of appellants, as follows: “Plaintiff's mortgage is a valid mortgage securing not only the note for $207.47, but any other indebtedness or accounts by Davis to .Carlisle from the date of the mortgage to October 1, 1901.” This instruction of the court is in exact opposition to the three instructions asked by appellant,
For a fifth assignment of error complaint is made that the court instructed the jury, over the objection of appellants, as follows: “Unless all the items of indebtedness made by Davis with Carlisle from date of mortgage to October 1, 1901, have been paid, your verdict should be for plaintiff.” There is no doubt, as an abstract proposition of law, that this instruction ought to be allowed to stand. The evidence shows that these horses were delivered to plaintiff before he began this suit in addition to the cash payments. The evidence shows that the only credit given upon the three notes from Davis to plaintiff was cash derived as proceeds of cotton. The foregoing instruction of the court might be said to include the value of the horses, and, had there been evidence before the jury of what the value of the horses really was, the instructions certainly would have been complete and sufficient. Neither court nor jury had any testimony as to this value of the horses, so far as this record discloses. Appellants seem to have been satisfied to have shown to the jury
We have carefully considered the authorities cited in the briefs in this case, and are unable to see how they belong directly or by analogy to the facts of this cause, except in a very general way. A distinction must be had between tiffs case and that of a sale of the mortgaged property. Tt is certainly the rule that, “where a chattel mortgage is given to secure future advances, all advances made -subsequent to a sale of the mortgaged property, the mortgagee having notice of such sale, will be postponed to the rights of such purchaser.” But in this case the junior mortgage was taken subject to the first mortgage as to the 40 acres of cotton, and included other property than that mentioned in the first mortgage. The general principle on which this case depends is that, where a valid chattel mortgage is given to secure anoto due at a certain date, and such mortgage contains a provision that the same shall be void unless on the payment of the first sum secured, together with payment of all other indebtedness, including all accounts made or given by the mortgagor to the mortgagee up to the coming due of the first note, such mortgage secures all indebtedness owing at the latter date from the mortgagor to the mortgagee; and where a second and junior mortgage is taken subject to the first mortgage such junior mortgagee is bound by notice of the first mortgage and its terms in his junior mortgage,
We do not think that there is any error in the instructions of the court, and, finding no error in the record, the judgment of the court below will be affirmed.