Day & Congleton Lumber Co. v. Mack

• Decision Date: 24 September 1902
• Citation: 69 S.W. 712,139 Ky. 587
• Parties: DAY & CONGLETON LUMBER CO. v. MACK et al. [1]
• Court: Kentucky Court of Appeals

69 S.W. 712

139 Ky. 587

DAY & CONGLETON LUMBER CO. v. MACK et al. ^[1]

Court of Appeals of Kentucky.

September 24, 1902

Appeal from circuit court, Wolfe county.

"Not to be officially reported."

Action by the Day & Congleton Lumber Company against Mack, Stadler &amp Co. to enjoin a sale. Judgment for defendants. Plaintiff appeals. Affirmed.

A. F Byrd, for appellant.

Z. T Hurst, for appellees.

O'REAR J.

This is a contest between equities. G. T. Center, who resided in Wolfe county, this state, owned a sawmill. He mortgaged it in 1893 to Harry Hawes. The mill was portable, and was then situated in Powell county. The mortgage was recorded in Powell county only. Afterwards Center sold the mill to Godsey, also a resident of Wolfe county. Godsey was told of the fact of the Hawes mortgage, which Center agreed to have released in time. To secure Center in the payment of two $700 notes, evidencing part of the purchase money, Godsey mortgaged the mill to Center. This mortgage was recorded in Wolfe county. Center assigned these two notes to appellees for value. Godsey resold the mill to Center, the latter apprising Godsey of the transfer of the notes to appellees, and agreeing to take them up. But he failed to do it. Hawes brought suit to enforce his mortgage. He did not make Mack, Stadler & Co. parties, nor Godsey. A sale was decreed and had to satisfy Hawes' debt. Kelly Fulks, a half-brother of Center, bought the mill at this sale; but Center paid for it, continued to exercise acts of ownership over it, and from the evidence we conclude, as the circuit court did, that Center was the real purchaser. Mack, Stadler & Co. then brought suit to enforce the mortgage securing the two $700 notes of Godsey assigned to them by Center. Godsey and Center were the only parties defendant. The petition did not describe the property mortgaged, a blank having been left, evidently to be filled in later. But the original mortgage was filed in the record (though not marked so), and was used in the preparation of the judgment. The court decreed a sale of the mill to satisfy the $1,400 evidenced by the Godsey notes. An amended petition filed set up that Center had repurchased the mill from Godsey. Center failed to answer. This judgment has never been executed, though rendered in September, 1895. Center and Fulks brought a suit to enjoin the execution of the judgment of sale on the ground that the judgment was void because of a failure to describe the property in the petition or in an exhibit marked "Filed"; also to vacate so much of the judgment as was a personal judgment for the money against Center. A temporary injunction was granted, but was dissolved on final hearing, the court adjudging that the judgment of sale should be enforced, deciding against Center and Fulks on that point, but vacating the personal judgment against Center. With the latter action we have not to do in this case. Center (or Fulks) subsequently sold the property, and through subsequent sales it has been bought by appellant. Appellees, being relieved of the injunction just mentioned, took steps to execute their judgment of sale. Appellant then brought this suit to enjoin the sale, claiming that it is an innocent purchaser under the Hawes mortgage foreclosure, and that the Godsey mortgage, under which appellees are proceeding, is junior to appellant's claim; and, besides, that the judgment of sale in favor of appellees is void for the same reasons urged by Center and Fulks in their suit. A temporary injunction was granted to appellant, and the sale was stayed. On final hearing the circuit court dismissed appellant's petition, dissolving the injunction.

The first question to be decided is, as between these litigants, which of the mortgages is superior? Section 496, Ky. St., is "No deed, or deed of trust, or mortgage conveying legal or equitable title to real or personal estate, shall be valid against a purchaser for a valuable consideration, without notice thereof, or against creditors, until such deeds shall be acknowledged or proved according to law, and lodged for record." Both of these mortgages were acknowledged by the owners of the property at the time, and were recorded. But only one--the Godsey mortgage--was recorded in Wolfe county, the county of Godsey's residence, and the county of Center's residence when he executed the mortgage to Hawes. Section 495 of the Statutes provides that all deeds and mortgages, to be effectual against purchasers or creditors, shall be recorded in the clerk's office of the court of the county where the property, or the greater part thereof, shall be. In the eye of the law the situs of personal property is the domicile of its owner. It has, therefore, been uniformly held in this state that the recording of a mortgage of personal property, to be valid as constructive notice, must be in the county of the owner's residence, if he have a place of residence in this state. Vaughn v. Bell, 9 B. Mon. 447; Singleton v. Young's Ex'rs, 3 Dana, 559; Coppage v. Johnson (Ky.) 55 S.W. 424. It is not shown that either appellant or appellees had actual notice of the mortgage under which the other is claiming. It follows, therefore, that appellees' mortgage is superior to the title acquired under the Hawes mortgage by appellant, although the latter is the elder.

The next question is, is appellees' judgment of sale void because of a failure of the petition to describe the property, or because of the failure of the clerk to indorse the exhibit, the original mortgage, as "file...