136 P. 795 | Wyo. | 1913
This action was brought by John Morton against William Reynolds in the District Court of Converse county to recover the possession of certain cattle. The case was transferred on change of venue to Carbon county, where the cause was tided and judgment rendered in favor of plaintiff. Defendant brings error.
The plaintiff claimed the right to the possession of the cattle in dispute by virtue of a chattel mortgage executed to him by Frederick W. Rimington and wife August 26, 1909, and filed in the office of the County Clerk of Converse county August 30, 1909, and given to secure a promissory note of said Rimingtons for $12,726.52, dated August 26, 1909, and due August 26, 1912. The action was commenced October 7, 1911.
The defenses pleaded were: First, a general denial, and second, what is denominated a cross-petition, in which it is alleged, in substance, that one Porter G. Fowler on July 13, 1907, purchased the cattle from Reynolds and gave him a chattel mortgage thereon to secure three notes of that date for $1,113.33 each and due, one in one year, one in two years and one in three years from date, which mortgage was filed in the office of the County Clerk of Converse county July 13, 1907. That about December 12, 1907, Fowler sold the cattle to Rimington, who assumed and agreed to pay the-notes secured by the Fowler mortgage, and that Rimington then took possession of the cattle. “That from time to time, the said Powell (Porter?) G. Fowler, from the offspring of said registered Hereford cattle aforesaid, paid unto the said defendant such sums of money, so that'
On the trial plaintiff offered in evidence a certified copy of the mortgage under which he claimed the right to the possession of the cattle in controversy. To the introduction of which defendant objected as incompetent, irrelevant and immaterial, because not acknowledged in compliance with the statute for the acknowledgment of chattel mortgages to entitle it to record. The objection -was overruled and the certified copy of the mortgage admitted in evidence. That ruling is assigned as error. The acknowledgment as it appears oh the certified copy of the mortgage, omitting immaterial parts, is as follows:
“State of Wyoming, County of Converse.)ss. I, Jas. W. McDevitt, a notary public in and for said county, in the state aforesaid, * * * * * *
Given under my hand and notarial seal this 26th day of August, A. D. 1909. My commission expires August 4, 1910.
(seal)
Jas. W. McDevitt,
Notary Public.”
Geo. W. Caldwell,
Notary Public, Bexar County, Texas.”
In the opinion that court said: “Article 3366, Revised Statutes, prescribed what character of seal the notary, should have, and required that he should úse it to authenticate his official acts. The seal was required to have engraved upon it the county for which he was appointed, (see sec. 3565, Wyo. Comp. Stat. 1910, for similar requirements) and it is to be presumed that a seal with the words Bexar county was affixed to this certificate. We do not believe that the caption furnishes the more certain guide as to the place where the certificate was made. * * * It is a common thing for deeds to be prepared in a county where the land is situated and where the title must be examined for the purchaser, upon blank forms printed for that county, with like blanks for certificates of acknowledgment in which that county is printed in the caption, and these deeds sent to other counties to be acknowledged by the grantors. If the officer in the latter county fails to change the name of the county in the caption, such conflict as appears in this case is inevitable. The common sense solution of this matter 'is, that this deed was prepared in Runnels county upon a blank form printed for transfers in that county, with like blank form for a certificate to be used by officers of that county, and that the notary public in Bexar county failed to change
It is argued here that the certified copy of the mortgage should not have been admitted because the seal of the county clerk was not affixed to the certificate. That objection was not made in the trial court. The objection that the evidence was immaterial, incompetent and irrelevant was too general to present that objection, especially so when by the objection the court’s attention was directed to the specific ground on which it was claimed it was immaterial, irrelevant and incompetent, viz: that the mortgage was not properly acknowledged. Nothing was mentioned in the objection about the clerk’s certificate. (Noonan v. Caledonia Min’g Co., 121 U. S. 393, (7 Sup. Ct. 911, 30 L. Ed. 1061); Gregory v. Langdon, 11 Neb. 166, 7 N. W. 871; Falk v. Gast L. & E. Co., 54 Fed. 890, 4 C. C. A. 648; Jochen v. Tibbells, 50 Mich. 33, 14 N. W. 690).
The defendant sought to prove a superior lien on the cattle by virtue of the Fowler mortgage and also by virtue
Affirmed.