75 Tex. 509 | Tex. App. | 1889
Appellee brought this action to recover the amount due on a promissory note executed to him by appellant, and to foreclose a chattel mortgage given to secure it.
The mortgage covered five hundred head of horses and the same number of cattle, described by a designated brand, all of which in the instrument were declared to be on appellant’s ranch in Taylor County; and there is nothing in the mortgage nor in the record which shows that the mortgaged property was not described with sufficient certainty to pass; title to specific property had the transaction been a sale instead of a mortgage.
The mortgage contained a power to sell in case the debt was not paid at maturity, and the trustee attempted to collect the mortgaged property for the purpose of selling it to satisfy the debt after its maturity, but he-was threatened with violence in case he proceeded, and desisted, and this, action was brought.
The mortgage contained a provision that the costs incurred in selling under it should be paid out of the proceeds of the property when sold, and appellee sought to recover a sum thus expended prior to the time the trustee was deterred from exercising the power conferred on him..
A copy of that mortgage, duly certified by the proper officer, was made an exhibit to the petition.
Appellant pleaded a general denial, alleged that the note carried usurious interest, and that the property mortgaged was but parts of stocks of cattle and horses.
There seems to have been a verbal agreement looking to convenience of counsel as to time when the cause should be taken up, but nothing tending to show that counsel for appellee intended to waive right to trial when the cause was reached in its order.
When the cause was reached counsel for appellee suggested that counsel for appellant resided in another town, and that he was willing to pass the case until another day, if thereby his right to a trial at a future day of the term should not be prejudiced.
The court declined to give that assurance, and the trial began, when other counsel appeared for appellant, who was permitted therein to make an informal application for continuance, which was overruled.
We do not see that there was anything in the agreement of counsel which entitled appellant to' a continuance, and in so far as it was asked on account of his absence as a witness the application was insufficient, in that he did not show that by the exercise of reasonable attention to his own business his deposition could not have been taken or he be present in person to testify.
The certified copy of mortgage attached to the petition was offered as evidence, and objected to on three grounds:
1. Because the description of property was not such as to identify any particular property.
2. Because it was claimed that the certificate showed that the mortgage had been recorded in full, instead of being deposited with the clerk, as is provided by law for the registration of chattel mortgages.
“ 3. Because the instrument offered is only a copy, and is not the best or primary evidence.”
The mortgage described the property covered by it with as much particularity and precision as is usual or necessary in the description of such property, and if uncertainty exists, this arises from facts extrinsic the instrument, which are not shown by the record before us.
What the effect of such uncertainty of description, if shown, would be, it is not now necessary to consider. The certificates to the copy of the mortgage offered do not show that it was registered or recorded otherwise than is required by the law regulating the registration of chattel mortgages, but if it was shown that it was recorded in full, this would not render the registration invalid, if the law regulating the registration of such instruments was otherwise complied with.
The law regulating the registration of chattel mortgages, among other things, provides that “a copy of any such original instrument, or any copy thereof, so filed as aforesaid, certified by the clerk in whose office the same shall have been filed, shall be received in evidence of the fact that such instrument or copy was received and filed according to the endorsement of the clerk thereon, but of no other fact.”
The law provides that an original chattel mortgage maybe filed, as was done in this case, and we see no good reason, when the mortgage has been acknowledged or proved for registration in the ordinary mode, and the original filed in the proper office, why a certified copy of that should not be received in evidence under the same rules which admit certified copies of other instruments properly registered.
There may be reasons why certified copies should not be received when only a copy is filed with the clerk, which the law permits to be done.
The Legislature, however, has declared that certified copies “shall be received in evidence of the fact that such instrument or copy was received and filed according■ to the endorsement of the cleric thereon, but of no other fact.”
This law has application only to chattel mortgages, and the emphatic language used shows that it was not intended that the statutes applicable to the use of certified copies of instruments recorded under the general registration laws should apply.
If the statute in question deprived the holder of a chattel mortgage of all opportunity or means to prove its existence and contents, it ought not to be given effect; but- such is not its effect. A mortgagee is under no obligation to file the original mortgage, but if it has been acknowledged, as was the mortgage in this case, he may file a copy, which will protect his right to him as fully as though the original was filed.
The original may be proved up in such a case and used in evidence under the rules applicable to the proof and admission of instruments, and if the original be filed its execution and contents may be proved in the same way.
The method of making proof may not be so convenient as is it in other cases under the laws regulating the admission of instruments or certified copies thereof when recorded under the general registration laws, but this furnishes no reason why effect should not be given to the clearly expressed intention of the Legislature.
In Boydston v. Morris, 71 Texas, 699, it was held that a certified copy of a chattel mortgage should not have been received for a purpose other than that contemplated by the statute, and that “in order to establish the mortgage its execution should have been proved, and the original produced or its absence accounted for.-”
If the attention of the Legislature be called to the statute in question, it would no doubt place it in harmony with other statutes permitting original instruments properly recorded to be used in evidence without further proof' of their execution, and permitting certified copies of duly recorded instruments to be used under given circumstances; but so long as the statute stands this court must give effect to the clearly expressed intention.
It does not follow from this, however, that the court below erred in admitting the copy over the objections urged to it. The very objections made are those to be here considered.
The first objection was that the paper offered was a copy, and not that it was not a true copy of the original, nor that the paper of which it purported to be a copy was not shown to have been executed by appellant.
It is shown that the paper of which that offered in evidence purports to be a copy was filed in the office of the county clerk of Taylor County, and that can not be withdrawn.
Thus is the non-production of the original sufficiently accounted for on the trial of this cause in Tarrant County. The objection that it was “a copy” is not equivalent to one that it was not shown to be a true copy, but carries with it the implication that such was conceded to be its true character. Appellee not being able to produce the original, because a filed paper in another county, was entitled to introduce such secondary evidence as was available. That a proved copy would have been admissible, the execution of the original being shown, under the circumstances of this case can not be questioned, and had the objection been that the execution of the original had not been proved or that the paper offered was not shown to be a true copy, then the objection should have been sustained unless the proof was made. If either of these objections had been made, the record leaves no doubt that they would have been obviated by proper evidence, if this was not actually done.
The attorney who wrote the mortgage testified on the trial to that fact and that it was signed by appellant, and had there been an objection based on the want of proof of execution of the original, or of the correctness of the copy offered, appellee would have had an opportunity to make these
The court below correctly ruled that appellee was entitled to recover such sum as he had in good faith expended in accordance with the terms of the mortgage in an effort to sell the property as therein provided, which, however, was prevented by the wrong of appellant, who forced the more-, exjiensive foreclosure through the courts.
There is no error in the judgment, and it will be affirmed.
Affirmed.
Delivered December 20, 1889.
