Crismon v. Barse Livestock Comm'n Co.

• Court: Oklahoma Supreme Court
• Writing for the Court: BURWELL, J.
• Citation: Crismon v. Barse Livestock Comm'n Co., 1906 OK 51, 87 P. 876, 17 Okla. 117 (Okla. 1906)
• Decision Date: 05 September 1906
• Parties: JOHN H. CRISMON as Sheriff of Pawnee County, Oklahoma Territory v. BARSE LIVESTOCK COMMISSION COMPANY, a corporation.

1906 OK 51

87 P. 876

17 Okla. 117

JOHN H. CRISMON as Sheriff of Pawnee County, Oklahoma Territory v. BARSE LIVESTOCK COMMISSION COMPANY, a corporation.

Supreme Court of Oklahoma

Decided: September 5, 1906

Syllabus

¶0 1. ATTACHMENT--Lien for Pasturing Cattle, Waived When. One who has a lien on cattle for pasturing them, under the terms of secs. 108 and 110 of chap. 3 of Wilson's Anno. Statutes of Oklahoma waives such lien by suing for the amount of the debt and causing the property covered by such lien to be attached in such suit, as the lien under the statute and the lien under the agreement are inconsistent, and cannot coexist in favor of the same person.

2. SAME--Chattel Mortgage. The rights of a mortgagee to the possession of personal property covered thereby are superior to those of a sheriff who claims under a writ of attachment, sued out at the instance of another creditor of the mortgagor and levied on the property after the filing of the mortgage for record in the office of the register of deeds of the county, the attaching creditor not having paid off the mortgage or deposited the amount thereof as required by the statute.

Error from the District Court of Pawnee County; before Bayard T. Hainer, Trial Judge.

Wrightsman & Fulton and James B. Diggs, for plaintiff in error.

Biddison & Eagleton, for defendant in error.

BURWELL, J.:

¶1 One J. C. Stribling controlled a certain pasture in the Osage Indian Reservation. Palmer & Brigham, through their representative J. B. Middlebrook, entered into a contract with Stribling for the pasturing of a bunch of cattle. This contract was entered into on April 2nd, 1902. On May the 17th, 1902, Palmer & Brigham executed a chattel mortgage to the Barse Live Stock Commission Company on these same cattle to secure the payment of eight thousand three hundred sixteen and 66/100 dollars. The commission company took the cattle from the pasture for the purpose of foreclosing its mortgage, there being a balance due thereon. Stribling, through his agent, J. M. Moody, commenced suit in the district court of Pawnee county against Palmer & Brigham, claiming that there was due him, for pasturing these cattle, the sum of $ 2,000, and alleging that there existed in his favor a lien under sections 108 and 110 of chapter 3 of Wilson's Statutes of Oklahoma, which provides as follows:

"Sec. 108. That any person or persons employed in feeding, grazing, or herding any domestic animals, whether in pasture or otherwise, shall for the amount due for such feeding, grazing or herding, have a lien on said animals.

"Sec. 110. All liens, not to exceed in the aggregate twenty-five per cent of the value of such animals, against any domestic animal or animals for labor, grazing, herding or feeding, or for corn, feed, forage or hay, furnished the owner of such domestic animals as herein provided, and actually used for such purpose, shall be prior to all other liens thereon, and no recital or stipulation in any mortgage or other incumbrance on any cattle so fed shall be held to supersede or vitiate the lien here provided for."

¶2 At the time of the commencement of that action an affidavit of attachment was filed by Moody (Stribling's agent) on the ground that Palmer & Brigham were non-residents. An order of attachment was issued thereon, placed in the hands of the sheriff, and the cattle in question seized thereunder. They were being held by the sheriff under this writ when the present suit was commenced by the plaintiff, Barse Live Stock Commission Company, against the sheriff, John H. Crismon, to recover possession of the cattle for the purpose of foreclosing its chattel mortgage.

¶3 The question presented for our consideration is, which lien is superior, the lien of the Barse Live Stock Commission Company under its chattel mortgage, or the lien of the attachment under which the sheriff held the cattle. This question is easily answered. The chattel mortgage was executed and properly filed long prior to the levying of the writ of attachment. There was no contention that the mortgage was not a valid and subsisting mortgage. The plaintiff in the attachment suit never paid off the mortgage or offered to do so, nor did he make a deposit of the money to pay off the mortgage as provided by the statutes. Therefore not having complied with the requirements of the law, the attachment must fail as against the chattel mortgage. But the plaintiff in error contends, that he claims under his statutory lien for pasturing the cattle and not under the writ of attachment.

¶4 It is true that the statute gives a lien on cattle to one who feeds or pastures them for such feed, or pasture; however, conceding that Stribling had a lien for such pasturing, he waived it...