Woods County Union Bank v. Shore

87 Kan. 140 | Kan. | 1912

The opinion of the court was delivered by

West, J.:

Replevin for two horses which had been mortgaged in Oklahoma and afterward sold in Kansas. The pivotal.question concerns the competency of oral testimony to show the law of Oklahoma. The defendants claim that the mortgage was not witnessed by two disinterested persons, as the Oklahoma law required in order to make it valid. They put upon the stand a lawyer familiar with the statutes and decisions of Oklahoma, who was asked to state what the statute was at the date of the execution of the mortgage with reference to the requirements of witnesses, and answered that to give it any validity it must be witnessed by the signature of two' disinterested persons, and that the courts of - Oklahoma had held that an officer of a bank which was taking a mortgage was an incompetent witness.

The plaintiff insists that as section 867 of the code provides that printed copies of the statutes of. another state shall be admitted as presumptive evidence, and that the common law may be proved as facts by parol evidence, no other means of proving such statute is competent. Several courts have held that by provisions similar to section 367 it was not intended that other means of proof could not be used, but simply to prescribe one manner of making proof. (Title Guarantee & Trust Co. v. Trenton Potteries Co., [N. J. 1897] 38 Atl. 422; Chattanooga Railroad Co. v. Jackson, 86 Ga. 676, 13 S. E. 109; Brady v. Palmer, 19 Ohio C. C. 687.) There are' numerous holdings that the law of another state may be proved by parol, and some that the statutes themselves may be thus proved. (Sierra Madre Const. Co. v. Brick, [Tex. Civ. App. 1900] 55 S. W. 521; Barber v. Brown, 17 Ky. Law Rep. 1172, 33 S. W. 833; Jackson v. Jackson, 82 Md. 17, 33 Atl. 317; 2 Wig. Ev. § 1271.) But without deciding the latter question, it is sufficient to observe that the evidence was competent to show that by judicial decision in Oklahoma one of the witnesses to the mortgage was incompetent and that the instrument was therefore void. Hence it could make no material difference how the statute was worded, and the evidence concerning its verbiage was neither indispensable nor fatal.

The plaintiff insists that the laws of another state can not be proved in any event unless ’ pleaded. But under the well-settled rule the defendant in replevin may, under a general denial, show any reason why the plaintiff is not entitled to recover. (Street v. Morgan, 64 Kan. 85, 67 Pac. 448.)

Finding no material error the judgment is affirmed.