Mc Cord v. Albany County National Bank, 6 Wyo. 507

Mc Cord v. Albany County National Bank

6 Wyo. 507 | Wyo. | 1896

Conaway, Justice.

The litigation in this case is as to the personal property and accounts covered by certain chattel mortgages executed by John Quann in his lifetime, in favor of the Albany County National Bank, and in favor of the several plaintiffs in error. The mortgage of the Albany County-Bank is prior in point of time, and it seems to be admitted that it constitutes a prior lien upon the property and accounts embraced within its terms. Its language is. not so comprehensive as that contained in the subsequent mortgages.

*516Quann was engaged in business as a grocery merchant, having a stock of goods in his store building, and having, also, elsewhere in the town, what is termed a grain warehouse and a hay warehouse.

On January 4, 1893, John Quann gave a chattel mortgage to secure an indebtedness of $5,800 to the Albany County National Bank upon ££ all his stock of merchandise, consisting of groceries, flour, feed, grain, shelf goods, canned goods, apples, fruits, woodenware, furniture and fixtures consisting of shelves, counters, showcases, and all goods, wares, and merchandise of every character and description whatsoever, then lying, being, situate, and contained in his certain store building at No. 113 Grand Avenue. * * Also all books of account appertaining and belonging to said business * * * and the accounts in said books. ’ ’ The mortgage provided that the mortgagor might £ £ use, handle, operate, manage, and control the property mortgaged, and market, sell, and dispose of portions thereof as might be necessary in the course of business, and to preserve and care for the same, and to replace such property or parts sold with other property of like kind and character, which property replaced might be purchased either with the net proceeds of the mortgaged property or otherwise, but all of which should be subject to the operation and effect of said mortgage. 5 ’ This character of mortgage is expressly authorized by statute. (Sess. Laws 1890-91, p. 90, Sec. 13.)

The subsequent mortgages of plaintiff in error were executed on January 11, 1893. They include the goods and accounts of the business of Quann covered by the mortgage of the Albany County Bank, and £ £ all articles of like kind and character kept by said Quann in his warehouse,” etc. They also include a horse and delivery wagon of small value not mentioned in the first mortgage. The evidence tends to prove that at the time of the execution of this first mortgage Quann had about thirty-six to forty-two dollars’ worth of hay in the hay and grain warehouse, and about twenty dollars in money. The trial court • *517allowed the subsequent mortgagees $90 of the proceeds of the mortgaged property. This was evidently on account of the hay, the money, and the horse and wagon, and seems amply sufficient to cover them all. -

But it is urged on behalf of plaintiffs in error that they as subsequent mortgagees should h.ive been allowed a much larger sum. The subsequent mortgages specified the goods on hand and those that might afterward be acquired, and the accounts already owing and those that might afterward accrue. The first mortgage was not thus specific in this particular. We are of the opinion that this was not necessary. The first mortgage seems to be in the usual, and in good form under the statute. The evidence seems to sustain the finding of the trial court. The several reports of the administrators of Quann show that the business was carried on by himself and the administrators without addition to the capital employed in the business at the time of the execution of the first mortgage, except a very moderate profit in the business. Under these circumstances it would seem clear that the lie n of the first mortgage should attach to the goods subsequently acquired and the accounts subsequently accruing from the use of this capital. It was a replacement, in the usual course of business, of the goods and accounts originally mortgaged. It is claimed that this court has held that the lien of a mortgage follows the mortgaged property and not the proceeds of such property. The case of Luman v. The Rock Springs National Bank, 42 Pac., 874, 48 Pac., 513 (6 Wyo.), is cited to this point. In that case it was held that, under a mortgage similar to the one under discussion here, the mortgagee was entitled to the proceeds of the mortgaged property as against a third party receiving such proceeds with notice of the facts, and the bank was compelled to pay a large sum in consequence. The case of Cone v. Ivinson, 4 Wyo., 203, is also cited.

A celebrated French diplomat is credited with the saying that language was invented to conceal thought. The language of the petition in the case of Cone v. Ivinson *518was so very efficient for this purpose that the court was not informed, either by direct averment or by an inuendo or intimation from which an inference might be drawn, whether the mortgage in the case was one under which portions of the property might be sold by the mortgagor discharged of the mortgage lien or not. As this was a material element in the plaintiff’s cause of action, it was for him to allege and prove. As he did not do so, the inference would naturally be that it was a mortgage in the ordinary form, discussed by all the principal authorities, under which the mortgagor could not discharge the mortgage lien upon the property by a transfer of the property, except in certain exceptional cases. The author of this opinion filed a dissenting opinion in that case, not so much in regard to-the legal principles involved as •to the effect of the facts alleged.

Judgment affirmed.

Groesbeck, C. J., and Potter, J., concur.