Cable Piano Co. v. Lewis

• Decision Date: 22 September 1922
• Citation: 195 Ky. 666,243 S.W. 924
• Parties: CABLE PIANO CO. v. LEWIS ET AL.
• Court: Kentucky Court of Appeals

243 S.W. 924

195 Ky. 666

CABLE PIANO CO. v. LEWIS ET AL.

Court of Appeals of Kentucky.

September 22, 1922

Appeal from Circuit Court, Bell County.

Action by the Cable Piano Company against James Lewis, Jr., and another. Judgment against the defendant named, and plaintiff moves for an appeal. Motion sustained, appeal granted, and judgment reversed, with directions.

James M. Gilbert, of Pineville, for appellant.

THOMAS J.

The appellant and plaintiff below, Cable Piano Company, sold to appellee and defendant below, W. P. Stoner, who resided at the time in Walker county, Ga., a piano for the agreed price of $475, upon which $59 was paid in cash at the time. Other payments were subsequently made, reducing the balance due to the sum of $307, with interest. While still owing that sum defendant removed himself and family from his Georgia residence to Bell county, Ky. carrying with him the piano and without reducing his indebtedness he attempted to sell it to his codefendant, the appellee James Lewis, Jr.

The contract for the sale of the piano to defendant Stoner was in writing, and in it plaintiff retained title, with the usual reserved rights of taking possession until the debt was fully discharged, which character of instrument in this jurisdiction has been construed to be nothing more than a mortgage of the property by the purchaser to secure the unpaid purchase price, provided the purchaser himself duly executes the contract; but in the one under consideration there was an express agreement, in addition to the retention of title, that the piano should be in lien for the unpaid purchase money, and it was signed by Stoner, the purchaser and witnessed by a notary public, and recorded in the office of the superior court of Walker county, where the purchaser and mortgagee resided.

This action was filed by plaintiff against defendants in the Bell circuit court, seeking to assert its title to the piano by recovering the possession of it under an order of claim and delivery, as provided by sections 180-193, both inclusive, of the Civil Code of Practice. There was an alternative plea that, if plaintiff was not entitled to recover the possession of the piano, it be adjudged a lien thereon for the balance of the purchase money due it, and for a judgment enforcing that lien.

Each defendant filed separate answers, but since the court gave personal judgment against Stoner for the full amount claimed and neither he nor plaintiff is objecting to that judgment on this appeal, it will be unnecessary to consider the issues raised by him, further than to say that his chief defense was that he had paid the entire consideration. Lewis, in his answer, stated that he purchased the piano from Stoner--

"for a valuable consideration, and that at the time he did so said purchase was made in good faith; he not knowing that plaintiff or any other person or persons had any claim for indebtedness of the said W. P. Stoner or any one against it." He furthermore made the general allegation that he used due diligence to learn if there was any mortgage or lien upon the piano, and that "said W. P. Stoner represented to him that the title to the said piano was clear and that it was unincumbered." His answer was denied by a reply, and upon trial the court gave the personal judgment against Stoner, as above stated, but declined to enforce the lien against the piano, and dismissed the petition as against Lewis, to reverse which plaintiff has filed a transcript of the record in this court, with a motion for an appeal. No brief has been filed for the appellee Lewis, and neither the judgment nor the record discloses the grounds for the court's judgment declining to enforce the lien, and we are left to speculate as to what they were.

The proper execution and legal effect of the writing in the state of Georgia, where it was executed and recorded, are neither of them proven according to the prescribed forms of law for the purpose, but two witnesses testified thereto without objection. They were incompetent witnesses to such facts, but both their incompetency as well as the improper method for proving such facts, if the witnesses were competent, may be waived, and this court has constantly held that, where neither the competency of the witness nor his testimony was objected to, the error in admitting it was waived, and it would be treated as competent for the purposes for which it was introduced. Tolly v. Champion, 191 Ky. 114, 229 S.W. 90; Roberson v. Roberson, 183 Ky. 45, 208 S.W. 19; Fears v. United Loan & Deposit Bank, 172 Ky. 255, 189 S.W. 226. We will therefore treat the question from the standpoint of a validly recorded chattel mortgage in the state of Georgia.

The priority of the lien of a mortgagee of chattels, whose mortgage was properly recorded at the situs of the property, as against an innocent party without actual notice, and who acquired his rights in another jurisdiction to which the property was removed by the mortgagor, is a question about which the courts do not altogether agree. The great weight of authority, however, is that the constructive notice furnished by the recording of the mortgage will follow the property into whatever state or jurisdiction it may be carried, and will affect purchasers, incumbrancers, and creditors of the mortgagor to the same extent as it would if their rights were acquired at the place where the mortgage was recorded; and this is especially true if the mortgagee did not consent to the removal of the property.

The preservation of the mortgagee's priority through the constructive notice furnished by his recorded mortgage is rested upon comity existing between foreign jurisdictions, and which applies as between the different states of the Union, as well as between foreign countries. It is therefore competent for a state to refuse to enforce the rule, which a small number of them do, while others have enacted statutes requiring such foreign mortgages to be re-recorded upon the removal of the property into their jurisdictions; but we have no such statute here. The general rule upon the subject is thus stated in 11 C.J. 424:

"The great weight of authority is to the effect that a chattel mortgage, properly executed and recorded according to the law of the place where the mortgage is executed and the property is located, will, if valid there, be held valid even as against creditors and purchasers in good faith in another state to which the property is removed by the mortgagor, unless there is some statute in that state to the contrary, or

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