Yund v. First National Bank of Shawnee

| Wyo. | Aug 28, 1905

Beard, Justice.

The defendant in error, hereafter called defendant, brought this action against plaintiff in error, hereafter called plaintiff, to recover the possession of certain personal property which was then held by the plaintiff, as sheriff of Albany County, by virtue of a writ of attachment-issued out of the office of the clerk of the District Court of said county in the case of Nyquist, Peterson & Co. against one J. V. Honeycutt. The defendant claimed to be entitled to the possession of the property under three chattel mortgages. The plaintiff answered, pleading thg writ of attachment and denying the validity of defendant’s mortgages. The property was taken from the possession of plaintiff upon the writ of replevin and delivered to the defendant. The case was tried to the court without a jury and judgment rendered in favor of defendant for a considerable portion of the property, and plaintiff brings the case here on error.

The petition contains three counts, each based upon a separate mortgage describing distinct portions of the property in controversy. It appears from the record that J. Y. Ploneycutt on February 20, 1900, executed to Willard Johnson, cashier of defendant, a chattel mortgage upon two mules, a wagon and a set of harness, to secure his note for $185 that day borrowed from defendant and due August 20, 1900, which mortgage was filed in the office of the register of deeds of Pottowatomie -County, Oklahoma, on the following day; the property being situated in that county both at the date of the execution and of the filing of the mortgage.

February 24, 1900, said Honeycutt executed to one Bradbury a mortgage on two other mules to secure his note to Bradbury for $175, due October 24, 1900, which note was on the same day assigned to defendant and the mortgage was filed March 13, 1900; the mortgaged property being in said Pottowatomie County at the time of the execution of the mortgage, but was removed from that territory before the mortgage was filed, as appears from the evidence to be considered later.

March 17, 1900, said Honeycutt executed another mortgage to said Johnson, cashier, upon a number of other mules, certain horses, and other property, consisting of a grading outfit, to secure his note to defendant for $746, due July 17, 1900, which mortgage was filed March 19, 1900. It is admitted by counsel for defendant in his brief that the property covered by this mortgage was in the Indian Territory at the time the mortgage was executed. It further appears from the evidence that this property was purchased by Honeycutt from one Gemmil on the day the mortgage was given, and that Honeycutt went to the Indian Territory where the property was at that time and where it was delivered to him on the following day, March 18. In each instance all of the parties to the several mortgages resided in Pottowatomie County, Oklahoma, and the mortgag-es were filed in that county and not elsewhere. There is considerable conflict in the evidence as to the location of the property covered by the second and third mortgages at the time they were filed. All of the evidence was in the form •of depositions and the court made no finding of facts. Honeycutt was the only witness who testified to the location •of the property covered by the second mortgage at that time. Plis deposition was twice taken, and in his first deposition he states that all of the property covered by the three mortgages was taken to the Indian Territory and worked there for some time before he shipped it to Nebraska, some of it three weeks and all of it three or four days. Again, speaking of the property covered by the second mortgage, he says he got it from Bradbury in Pot-towatomie County the day he gave the mortgage, kept it there three or four days, then took it to the Indian Territory, and kept it there until he shipped it to Nebraska. In his second deposition he states that this property was at his father’s place in Pottowatomie County on March 13. In the absence of a finding of facts by the District Court, we .are of the opinion that this property was taken out of Oklahoma within a few days after this mortgage was given .and was not there at the time the mortgage was filed. The •evidence shows that Honeycutt was engaged in railroad work in the Indian Territory at that time and up to near the time he went to Nebraska. There is also a conflict in the testimony as to the location of the property covered by the third mortgage. Honeycutt testified in his second deposition that he received it from Gemmil on March' 18 in the Indian Territory and at once returned with the stock to Oklahoma, where he kept it for two days and then went to Sapulpa, Indian Territory, and shipped it to Nebraska •on March 24 or 25. Two other witnesses testify that the ■property was shipped from Sapulpa on March 22, and that it was not taken to Oklahoma before shipment; one of these witnesses stating that he had refreshed his memory by referring to the bill of lading, and that he went on the same train with the property. However this may be, we ■regard it as immaterial. That portion of the mortgaged •property which was attached was removed from Oklahoma without the knowledge or consent of the defendant and was brought to Wyoming in June, 1900, the defendant learning in the latter part of July, 1900, of such removal. It was attached August 14, and this action was commenced September 7, 1900.

The statutes of Oklahoma (Sec. 18, Ch. 24, Session Laws 1897) provide as follows: “A mortgage of personal property is void as against creditors of the mortgagor, subsequent purchasers and encumbrancers of the property in good faith, for value, unless the original, or an authenticated copy thereof, be filed by depositing the same in the office of the-register of deeds of the county where the property mortgaged, or any part thereof, is at such time situated.” The first mortgage having been filed where the property was situated at the time it was executed--and while the property remained there, became a valid lien as against the creditors of the mortgagor in Oklahoma. The second mortgage was not filed until some time after the property covered by it had been removed from Oklahoma, and it is-contended by counsel for plaintiff that for that reason it never became a lien on the property. This contention must be sustained. The mortgage was void as against creditors of the mortgagor in Oklahoma unless filed, and not being-filed before the property was removed to the Indian Territory, it went there free of any lien as to creditors, and the subsequent filing in Oklahoma could create no lien upon it in a foreign jurisdiction.

The third mortgage never became a lien as against creditors because not filed where the -property- was situated at the time it was executed. The Supreme Court of Oklahoma has construed its statute and by that construction we are bound. In the case of Greenville National Bank v. Evans-Snider-Buel Co. (Okla.), 60 P., 249" court="Okla." date_filed="1900-02-07" href="https://app.midpage.ai/document/greenville-national-bank-v-evans-snyder-buel-co-3807283?utm_source=webapp" opinion_id="3807283">60 Pac., 249-253, it is said that the statute “has only provided for the filing of mortgages, on property which is located within the territory at the time of the execution of the mortgage.” And in First National Bank v. Weed, 89 Mich., 373, in construing the language of the statute providing for the filing of chattel mortgages in the office of the town -clerk of the township,, etc., “where the property is,” it is said: “It is .plain that it is the' intent of the statute that the filing should be in the township or city where the property is at the time of-the-execution and delivery of the mortgage, and not in some-other township or city to which the property .may be removed after such execution and delivery.” ' Stirk v. Hamilton, 83 Me., 524, is to the same effect.

The second and third mortgages not being valid liens upon the property in Oklahoma, where they were made, were not liens upon it in this state, to which the property was subsequently removed, as against the creditors of the mortgagor. The only remaining question which it is necessary to consider is in relation to the first mortgage. Upon' this question the law' seems to be so well settled that it would serve no good purpose to review the authorities on the point. It may be safely said that the great weight of authority is to the effect, that where a mortgage is executed upon personal property between parties residing in one state or territory upon property there • situated at the time of the execution of the mortgage, and it "is executed, filed or recorded according to the laws of such state or territory so that if becomes a valid lien upon the mortgaged property in that state or territory as against creditors or purchasers, and the property is afterwards removed by the motrgagor, without the knowledge or consent of the mortgagee or the holder of the mortgage, to another state or territory, the mortgage remains a valid lien upon the property, which will be enforced against creditors of or purchasers from the mortgagor by the courts of the state or territory to which the property has been removed, although not filed or recorded in the latter state or territory, unless the statutes of the latter require foreign mortgages to be filed. (A. & E. Enc. (2d Ed.), 1342, and cases cited in notes; 24 A. & E. Enc. (2d Ed.), 93, and cases cited in notes.)

In many cases the courts have gone much further than stated above in sustaining the lien of the mortgage. In a recent case involving a similar question as to the validity of a contract of conditional sale of personal property made • in another state and where the property was afterwards brought into this state and sold to an innocent purchaser, no record of such contract being required in the state where made, and it was not filed in this state, it was held that the title of the conditional vendor was superior to that of the purchaser from the conditional vendee and that the courts of this state would enforce the contract. (Studebaker Bros. Co. v. Mau, 80 P., 151" court="Wyo." date_filed="1905-03-28" href="https://app.midpage.ai/document/studebaker-bros-v-mau-6587728?utm_source=webapp" opinion_id="6587728">80 Pac., 151.). After a careful reconsideration of that case upon a full argument on a petition for a rehearing, a rehearing was denied in an opinion handed down at this sitting of the court.

In some states it has been provided by statute that foreign mortgages must be filed or recorded in those states within a reasonable or specified time after the property is brought into the state, in order to preserve the lien against creditors or purchasers; but our statutes contain no such requirement.

For the reasons above stated, the District Court properly held that the defendant was entitled to the possession of the property covered by the first mortgage, dated March 20; but erred in concluding that it had any valid lien upon the balance of the property in controversy as against the plaintiff. The judgment of the District Court is reversed and the case remanded to that court for a new trial or other proceedings in accordance with the views expressed in this opinion. Reversed and remanded.

Potter, C. J., and Van Orsdel, J., concur.