| Ky. Ct. App. | Sep 24, 1902
Opinion of the Court by
Affirming.
This is a contest between equities. G. T. Center, who resided in Wolfe County, this State, owned a saw mill. He mortgaged it in 1893 to Harry Hawes. The mill was portable, and was then situated in Powell county. The mortgage was recorded in Powell county only. Afterwards Center sold the mill to Gudsey, also a resident of Wolfe county. Gudsey was told of the facts of the Hawes mortgage, which Center agreed to have released in time. To secure Center in the payment of two $700 notes, evidencing
Mack Stadler & Co., then brought suit to enforce the mortgage securing the two $700 notes of Godsey assigned to them by Center. Godsey and Center were the only parties defendant. The petition did not describe the property mortgaged, a blank having been left evidently to be filled in later. But the original mortgage was filed in the record (though not marked so), and was used in the preparation of the judgment. The court decreed a sale of the mill to satisfy the $1400 evidenced by the Godsey notes. An amended petition filed set up that Center had repurchased the mill from Godsey. Center failed to answer.
This judgment has never been executed, though rendered in September 1895. Center and Fulks brought a suit to enjoin the execution of the judgment -of sale, on the ground that the judgment was void, because of a failure to describe the property in the petition, or in an exhibit, marked “filed;” also to vacate so much of the- judgment as was a personal judgment for the money against Center. A temporary
Center (or Fulks) subsequently sold the property, and through subsequent sales it has been bought by appellants. Appellees being relieved of the injunction just mentioned, took steps to execute their judgment of sale. Appellants then brought this suit to enjoin the sale, claiming that they are innocent purchasers under the Hawes mortgage foreclosure, and that the Godsey mortgage, under which appellees are proceeding, is junior to appellants’ claim; and beside, that the judgment of sale in favor of appellees is void, for the same reasons urged by Center and Fulks in their suit. A temporary injunction was granted to appellants and the sale was stayed.
On final hearing the circuit court dismissed appellants’ petition, dissolving their injunction.
The first question to be decided is, as between these litigants, which of the mortgages is superior?
Section 496 Kentucky Statutes is:
“No deed, or deed of trust, or mortgage conveying legal or equitable title to real or personal estate, shall be valid against a purchaser for a valuable consideration, without notice thereof, or against creditors, until such deeds shall be acknowledged or proved according to law, and lodged for record.”
Both of these mortgages were acknowledged by the owner of the property at the time, and were recorded. But only one, the Godsey mortgage, was recorded .in Wolfe county, the county of Godsey’s residence, and the county of Center’s residence when he executed the mortgage to Hawes.
In the eye of the law the situs of personal property is the domicile of its owner. It has therefore been uniformly held in this State that the recording of a mortgage of personal property to be valid as constructive notice, must be in the county of the owner’s residence, if he have a place of residence in this State. (Vaughn v. Bell, 9 B. Mon. 447" court="Ky. Ct. App." date_filed="1849-06-23" href="https://app.midpage.ai/document/vaughn-v-bell-7129198?utm_source=webapp" opinion_id="7129198">9 B. Mon. 447; Singleton v. Young’s executor, 3 Dana, 559" court="Ky. Ct. App." date_filed="1835-11-04" href="https://app.midpage.ai/document/singleton-v-youngs-executors-7380165?utm_source=webapp" opinion_id="7380165">3 Dana, 559; Coppage v. Johnson, 21 Ky. Law Rep. 1357.)
It is not shown that either appellants or appellees had actual notice of the mortgage under which the other is claiming. It follows therefore that appellees mortgage is superior to the title acquired under the Hawes mortgage by appellants, although the latter is the elder.
The next question is, is appellees’ judgment of sale void because of a failure of the petition to describe the property? Or because of a failure of the .clerk to endorse the exhibit, the original mortgage, as “filed?”
There is no Code provision requiring the petition to enforce a lien upon personal property to contain a description of the property, although it is undoubtedly better practice to do so, and a petition so deficient might be demurrable.
Section 125 of the Civil Code does require that “a petition for the recovery of land, or for its subjection to a demand of the plaintiff, must describe it so that it may be identified. ” Yet, under this section, it has been held that a description contained in an
In Posey v. Green, 78 Ky. 165 it was held that a description of land decreed to be sold, by referring to a commissioner’s report in the case would be valid.
But we can perceive no reason for requiring, as a jurisdictional fact, that personal property sought to be subjected in a suit, should be described in the petition. The contrary is true as to land. The reason for the distinction is obvious.
But even if such a description were required the failure to do so would not render the judgment void, and subject to collateral attack. (Buckner etc. v. Samuels, 6 Ky. L. Rptr. 663" court="Ky. Ct. App." date_filed="1885-03-05" href="https://app.midpage.ai/document/botto-v-botto-7156888?utm_source=webapp" opinion_id="7156888">6 Ky. Law Rep. 663.)
We conclude that a description of personal property subjected to sale by a decree of court, when found in the judgment, the court having obtained jurisdiction of the person of the owner, is sufficient.
The property adjudged to be sold in this case is the - identical property mortgaged by Godsey to Center. That fact is not disputed.
The mortgage found in the record is the genuine document. Nor is that fact questioned. Under the Code (Sec. 120) the mortgage being the foundation of the suit, was required to be filed with the petition, and when done becomes a part of the record. (Gilbert v. Bamberger, 19 Ky. Law Rep. 1836.)
Section 669 of the Civil Code requires that “the clerk shall endorse upon every paper filed in an action, the day of filing it.”
A paper is filed by lodging it with the clerk of the court, where it is permissible to be done. His en
There is another reason why appellants’ title is defective: They claim through a purchase from Fulks and Center. Fulks and Center had litigated this identical question of void judgment with appellee, and the matter was adjudged against them. Their vendees are bound by that decision.
The judgment is affirmed.