Ayre v. Hixson

• Decision Date: 15 December 1908
• Citation: 53 Or. 19,98 P. 515
• Parties: AYRE v. HIXSON et al.
• Court: Oregon Supreme Court

98 P. 515

53 Or. 19

AYRE v. HIXSON et al.

Supreme Court of Oregon

December 15, 1908

Appeal from Circuit Court, Baker County; William Smith, Judge.

Suit by W.G. Ayre against Elizah Hixson and others. From a decree for plaintiff, a part of defendants appealed. Affirmed.

This is a suit to foreclose four mortgages, which include both real and personal property. It appears from the record that about November 26, 1901, plaintiff sold to the defendants, Hixson &amp Ames, about 530 ewes, and lent to them $1,572, evidenced by a promissory note due three years after date, with interest at 10 per cent. per annum after November 26, 1902. For the purpose of securing the payment of the loan Hixson & Ames executed to plaintiff a mortgage upon "all our sheep described as follows: Five hundred thirty (530) ewes, part of said ewes being marked with an underbit in each ear, and part of them marked with an underbit in left ear, and the increase of said sheep"; also upon certain real property. Thereafter, on July 18, 1903, plaintiff leased to Hixson &amp Ames 1,000 yearling ewes for the period of three years from October 14, 1903, at an annual rent of $750. Hixson & Ames were to pay all expenses of running the sheep, and were to keep them free from liens or incumbrances, and to deliver the wool clip to Ayre, who was to sell it, and upon the receipt of the selling price was to retain therefrom sufficient to pay any balance due on the notes given for the rent; and, in case of failure of Hixson & Ames to keep the covenants of this agreement, Ayre was to take possession of the sheep and their increase, and to hold such increase until the amount of damages caused by any breach of the terms of the lease should have been adjusted. As evidence of the annual rent of $750 Hixson & Ames executed to Ayre three promissory notes, due July 1, 1904, July 1, 1905, and July 1, 1906, respectively and secured the payment thereof by a mortgage on certain real estate.

On October 14, 1905, plaintiff leased to Hixson & Ames 1,032 yearling ewes for the term of three years at an annual rent of $1 per head, evidenced by three promissory notes: One for $1,249, due on demand; one for $1,032, due one year after date; and one for $1,032, due two years after date--with interest at 10 per cent. per annum. The terms as to the running expense, wool clip, etc., were the same in every respect in this lease as in the lease of the 1,000 head of ewes above mentioned. From the price of the wool Ayre was to retain sufficient to pay any balance due on the notes mentioned, together with any advances made by himself or expenses incurred on account of the lease; and on the same date, as security for the payment of the notes above mentioned, Hixson & Ames executed to Ayre a mortgage upon certain real property, and also "together with the increase from all the sheep rented to the said mortgagors by a lease, hereinafter mentioned, of even date herewith; also 14 head of bucks turned over with said sheep; and also all sheep belonging to said mortgagors upon which said mortgagee has no mortgage or lien." There was included in the mortgage also the further sum of $500, as indemnity against loss or damage caused by failure of Hixson & Ames to keep the covenants of this lease. It was provided that after the payment of any of the three notes the mortgage should remain in full force and effect as indemnity in the sum of $3,813 to the mortgagee until all covenants of the lease should have been fulfilled; and if the mortgagors should fail to pay the sums due, or fail to comply with any of the covenants set forth in the lease, the mortgagee might at the time of such failure to pay, or breach of the covenants in this mortgage or lease, compel payment for the rent, and any damages which he might suffer by reason of such breach; and, if Hixson &amp Ames should suffer any lien to be placed upon this band of ewes, the mortgagee might at his option make payment thereof, and the same should become a part of the debts secured thereby.

The fourth mortgage was given February 12, 1907, by Hixson & Ames to Ayre to secure a note of $1,000, dated October 14, 1906, due one year after date, upon "all our sheep, or sheep in which we have any interest, consisting of about 4,000 head thereof, together with the increase therefrom, and the wool therefrom and thereon during the life of this mortgage, or any sheep we may hereinafter acquire during said time"; also upon the same lands described in the first, second, and third mortgages. During the time of these dealings between plaintiff and defendants Hixson & Ames, plaintiff received from them the wool clip each year, beginning with the year 1904, and purchased from them about 779 sheep, some hay, and a few other small items, the proceeds of which he applied at first as credits on an open account and to the cancellation of notes for advances and expenses. The remainder was applied to the payment of the notes especially secured by the mortgages.

On June 15, 1905, plaintiff and defendants, Hixson & Ames, had a settlement, in which all the credits up to that time were adjusted and applied, leaving the face of the note of the mortgage of 1901 and the notes of the mortgage of 1903 unpaid, and canceling all other prior obligations.

The defendants Brasfield Bros. were made defendants in this suit because they were in possession of sheep which plaintiff contends are included in the mortgages. All the defendants joined in an answer to the complaint, and at the time of the commencement of the trial plaintiff amended his complaint by inserting pages 4 and 4 1/2, which concerned only the second cause of suit, and the defendants reserved the right at that time thereafter to move against or answer the amended complaint. The testimony was all taken before the answers were filed, and at the time for the argument defendants Brasfield Bros. filed a separate answer, to which no objection was taken at the time, and plaintiff replied thereto on the same day. The cause was tried, findings were made in favor of the plaintiff, and a decree was rendered thereon; and defendants Brasfield Bros. alone appeal.

J.N. Hart, for appellants.

O.B. Mount and M.D. Clifford, for respondent.

EAKIN, J. (after stating the facts as above).

At the outset plaintiff contends that because the defendants Brasfield Bros. joined with Hixson & Ames in the original answer, and therefore could make no defense not common to all the defendants so answering, they cannot now by their several answers avail themselves of the defense that they were innocent purchasers. At the time the complaint was amended, defendants, by consent of the court, reserved the right to move against or to answer the same at a subsequent time. This was prior to the taking of any evidence; and in filing their answer to the amended complaint they were not bound to adhere to the defenses of the original answer, nor were they precluded by that several answer from making any defense otherwise available to them.

The first contention of the defendants Brasfield Bros. is that there is no evidence before the court that any of the mortgages were recorded, and that the burden is upon plaintiff to prove notice thereof. At the trial the original mortgages were identified and offered in evidence. On the back of these is certified the time when they were received, and a reference to the book and page in which they were recorded, but such certificate was not identified or offered in evidence. Section 5357, B. & C. Comp., is expressly made applicable to chattel mortgages by section 5634, Id., and provides that the county clerk shall certify on every conveyance recorded the time when received and the place of record; and every conveyance shall be considered recorded at that time. Such a certificate would be evidence of the time and place of record, if offered in evidence; but not being identified or offered, it is not before the court. This certificate is no part of the mortgage identified by the witness nor is it part of the "conveyance duly acknowledged," which is made competent evidence without further proof by section 5355, B. & C. Comp., but is an independent instrument executed at a different time and by a different person. In Drexel v. Murphy, 59 Neb. 210, 80 N.W. 813, it was held that a certified copy of a chattel mortgage offered in evidence was not an offer of the indorsement thereon of the filing. To the same effect is Fuller v. Brownell, 48 Neb. 145, 67 N.W. 6. Therefore, the certificate of record indorsed on the mortgage is not before the court as evidence of such record.

The defendants also objected to the mortgage of February 12, 1907, for the reason that it is not recorded as provided by B. & C. Comp. § 5631, viz., that it is recorded in the record of mortgages of real property, but not indexed in the general index of chattel mortgages. That section provides that chattel mortgages shall be recorded in a book kept exclusively for that purpose, and a general index thereof kept by the recorder; but if the instrument is "intended to operate as a mortgage of real property, as well as a mortgage of personal property, such instrument may be recorded in the records of mortgages of real property, and such county clerk or recorder of conveyances in whose office the same is recorded, shall index the same in the general index of mortgages of personal property or chattel mortgages as well as in the general index of mortgages of real property, and the same need not be recorded in the records of mortgages of personal property." Section 5633, B. & C. Comp., provides that every mortgage of personal property alone or with real property, if not accompanied by immediate delivery and continued change of possession, or which shall not be recorded as provided in section...