161 N.W. 1001 | S.D. | 1917
Defendant sheriff was in possession of certain mortgaged chattels pursuant to a warrant of attachment issued against 'the property of the mortgagor, Choquette. Plaintiff, as assignee of the mortgage, brought this action for the possession of the chattels and for damages for their 'detention. Defendant demurred to the complaint for want of facts. The demurrer was sustained. Therefrom plaintiff appeals.’
The complaint alleges the giving of a chattel mortgage on the property by Choquette to Reeves & Co. in Weston county, Wyo., to secure the payment of specified promissory notes; the execution and filing of same, or a copy thereof, for record in said county in accordance with the laws of Wyoming, pleading them; the assignment of the notes to plaintiff; 'the removal of the property to South Dakota without the knowledge of plaintiff; the attachment of the property by the sheriff; and actual knowledge of the mortgage by the attaching creditors. The complaint also sets forth the mortgage in full, and 'contains allegations showing plaintiff's special property in the chattels. The mortgage was witnessed by only one witness, and did not contain the recital required by our section 2092, C. C., that the mortgagor had received a copy of the mortgage.
“Courts will- not enforce a foreign mortgage lien against those citizens of the state of the forum who are not parties to-the mortgage, where the mortgage has not been recorded in the state of the forum. Miles v. Oden, 8 Martin (N. S. La.) 214, 19 Am. Dec. 177.”
Of the Louisiana decisions on this subject the following appears in Jones on Chat. M-tg. (5th Ed.) § 300.
“Thus, a chattel mortgage being- wholly unknown to the law of Louisiana, the courts of that state do not feel bound by the comity of nations to enforce such a mortgage made in another state.”
Again, in -the cited Louisiana case the fact appeared that the assignee of the Kentucky mortgage assented to the removal of the property from that state, and the purchaser in Louisiana made his purchase in good faith without notice of the lien. So that the illustration should not in any event apply to cases where the property was wrongfully removed from a state without the knowledge of the mortgagee, and where the third persons had actual knowledge of the mortgage.
In Carroll v. Nisbet, 9 S. D. 497, 70 N. W. 634, it was held that, because -of the failure to file the mortgage in Illinois, and because of the consent of the mortgagee to the removal of the
The great preponderance of authority sustains the rule that a chattel mortgage executed and recorded in the state where the property is situated will, if valid under the laws of that state, be enforced by the courts of another state into which the property is afterwards removed by the mortgagor. Wilson v. Rustad, 7 N. D. 330, 75 N. W. 260, 66 Am. St. Rep. 649; Yund v. First Nat. Bk., 14 Wyo. 81, 82 Pac. 6; Simms v. McKee, 25 Iowa, 341; Keenan v. Stimson, 32 Minn. 377, 20 N. W. 364; Farmers’ & Merchants’ St. Bk. v. Sutherlin 93 Neb. 707, 141 N. W. 827, 46 L. R. A. (N. S.) 95, Ann. Cas. 1914B, 1250, and note; Jones on Chat. Mtg. (5th Ed.) § 299. We do not need to go to that extent in this case. *. 0 simply -hold that it is the duty of the court to apply the rule of comity to the facts here presented. It is so applied, and the validity of the Wyoming mortgage should be recognized by the courts of this state.
The order appealed from is reversed.