129 P. 1029 | Utah | 1913
This was an action in claim and delivery to recover possession of a stallion of the alleged value of $540, which, it is alleged, was unlawfully detained from respondent by appellant after demand therefor had been duly made upon the latter.
The respondent’s right to possession is based upon a chattel mortgage, which he alleged was executed, delivered, filed, and recorded as provided by the statutes of this state. The appellant denied respondent’s right to possession and set up a counterclaim, in which he claimed the right to the possession of said stallion by reason of an agister’s lien, which he alleged was in full force, for feeding and caring for said stallion at the request of the owners thereof, and which he claimed was a prior and superior lien upon said stallion. Eespond-ent denied the allegations contained in the counterclaim
Tbe controlling facts, wbicb are practically undisputed, are, in substance, as follows: On tbe 20th day of February, 1911, respondent was tbe owner and in possession of the stallion in question; that on that day be sold tbe same to W. BO. and Eboda Blayes, who, to secure tbe purchase price thereof, on said day executed and delivered to respondent their two promissory notes, one for $200, payable to tbe order of respondent on tbe 1st day of August, 1911, and tbe other for $300, payable to respondent or order on tbe 15th day of October, 1911, both notes bearing interest at tbe rate of eight per cent., and payable at a particular bank in Ogden, Utah; that to secure tbe payment of said notes said purchasers also executed and delivered to respondent a chattel mortgage, whereby they mortgaged said stallion to him; that said mortgage was executed and filed in tbe recorder’s office and recorded on tbe 27th day of February, 1911, in Weber County, Utah, as provided by law; that tbe appellant, at all tbe times aforesaid, was, and thereafter continued to be, engaged in tbe livery and feed business in Ogden, Utah;that on tbe 20th day of April, 1911, tbe purchasers of said stallion delivered tbe same to appellant to be kept, fed, and cared for by him, and then promised to pay him for keeping, feeding, and caring for said stallion at tbe rate of twenty dollars per month; that pursuant to said promise appellant did beep, feed, and care for said stallion from tbe 20th day of April, 1911, to and including tbe 16th day of March, 1912, and that there was a balance due and owing to appellant for keeping, feeding, and caring for said stallion from said purchasers amounting to tbe sum of $176.77; that said stallion was placed in tbe custody of appellant, and be kept, fed, and cared for tbe same during all of said time “without tbe knowledge, authority or consent of tbe plaintiff,” respondent here; that no part of tbe notes, as aforesaid, was paid to respondent, and on tbe 16th day of March, 1912, be demanded possession of said stallion by virtue of tbe chattel mortgage, aforesaid, wbicb was refused, whereupon respondent, on tbe
In order to determine the first proposition, it becomes necessary to construe Comp'. Laws 1907, section 1401, under the provisions of which appellant claims his lien. That section reads as follows:
1 ‘‘Any ranchman, farmer, agister, or herder of cattle, tavern keeper, or livery stable keeper, to whom any horses, mules, cattle, sheep; or asses shall be intrusted for the purpose of feeding, herding, pasturing, or ranching, shall have a lien upon such animals for the
amount that may be due him for such feeding, herding, pasturing or ranching, and shall be authorized to retain possession of such animal until the said amount is paid.”
In tbe first case cited tbe statute was in terms precisely like ours, and in all tbe other cases tbe statute was in legal effect tbe same. See, also, Jones on Chattel Mortgages (5 Ed.), secs. 472, 474, where tbe cases are collated.
While sometimes other eases are referred to as sustaining a rule contrary to tbe one laid down in tbe foregoing
Proceeding now to a consideration of the second proposition, namely: Was respondent’s mortgage in force and' effect, when this action was commenced,-as against appellant’s agis-ter’s lien? We think it was. Comp. Laws, 1907, sec. 155, is as follows:
2 “Every mortgage so filed shall be void as against the creditors of the person making the same, or against subsequent purchasers or mortgagees in good faith, after the expiration of one year after the filing thereof; unless within thirty days after the expiration of the term of one year from such filing, and within thirty days after the expiration of each year thereafter, the mortgagee, his agent or attorney, shall make an affidavit exhibiting the interest of the mortgagee in the property at the time last aforesaid, claimed by virtue of such mortgage, and if such mortgage is to secure .the payment of money, the amount yet due and unpaid, and shall file the same with the county recorder, to be attached to the instrument or copy on file to which it relates; provided, that no mortgage of personal property shall be valid as against creditors of the mortgagor or subsequent purchasers or mortgagees in good faith, after the expiration of five years from the date of the original filing.”
Section 156 reads as follows:
*261 “If such affidavit be made and filed before any purchase of such mortgaged property shall be made, or other mortgage deposited, or lien obtained thereon, in good faith, it shall be as valid to continue in effect such mortgage as if the same had been made and filed' within the period above provided.”
From the provisions contained in the foregoing sections, it is apparent that a chattel mortgage in this state continues in full force and effect for a period of thirty days after the expiration of one year from the time it was filed in the county recorder’s office; and if the affidavit and statement required by the statute are filed within the thirty days mentioned therein, then the mortgage continues in full force another year, and so on until five years have elapsed. From the provisions contained in section 156,'it. is also apparent that the affidavit and statement required by section 155 may be filed any time subsequent to the thirty days, provided they are filed before any rights have attached to the mortgaged property. Time is therefore not of the essence, except where rights exist or are acquired against the mortgaged property before the thirty-day period has expired.
In passing upon this point tbe Supreme Court of North Dakota, in National Bank v. Oium, 3 N. D. at page 212, 51 N. W. at page 1040, 44 Am. St. Rep. 533, says:
“Filing is a substitute for possession. ... If possession is taken by tbe mortgagee before the period arrives at -which the mortgage is required to be renewed, there is no reason why the failure to renew it should affect its validity.”
In that case, as in tbe case at bar, no renewal affidavit was filed by tbe mortgagee, but be, like respondent, bad taken possession before the time within which tbe affidavit should be filed bad expired; and tbe court accordingly held that tbe failure to file tbe affidavit under sucb circumstances did not affect tbe validity of tbe mortgage, nor affect tbe mortgagee’s right to enforce tbe same. This seems to us to be both good law and' good sense. Why file an affidavit if it is not desired to renew tbe mortgage and keep- it in force beyond tbe period that it is in full force and effect by reason of tbe first filing? Frank v. Playter, 73 Mo. 672, and Dayton v. Savings Bank, 23 Kan. 421, are directly in point; tbe only difference between those two cases and tbe one at bar being that the renewal affidavit and statement were required to be filed thirty days before tbe year expired, while under our statute, as we have seen, this was required to be
In view of the conclusions reached, we need not pass upon the further question insisted upon by respondent, namely, that in no event does appellant come within the class mentioned in our statute which may assail the validity of his mortgage; and hence his mortgage, as against appellant’s claim, is valid at all events. We express no opinion upon that question.
Tor the reasons stated, the judgment is affirmed, with costs to respondent.