Deseret Nat. Bank v. Kidman

• Decision Date: 23 March 1903
• Docket Number: 1390
• Citation: 25 Utah 379,71 P. 873
• Court: Utah Supreme Court
• Parties: DESERET NATIONAL BANK OF SALT LAKE CITY, a Corporation, Appellant, v. WILLIAM KIDMAN and EPHRAIM KIDMAN, Respondents

71 P. 873

25 Utah 379

DESERET NATIONAL BANK OF SALT LAKE CITY, a Corporation, Appellant, v. WILLIAM KIDMAN and EPHRAIM KIDMAN, Respondents

No. 1390

Supreme Court of Utah

March 23, 1903

Appeal from the First District Court, Cache County.--Hon. Charles H Hart, Judge.

Action of replevin. The lower court, on the grounds that the affidavit and acknowledgment of the chattel mortgage on the sheep were not in accordance with the law of Idaho and that the mortgage was not sufficient to charge defendants with notice of its existence, instructed the jury to return a verdict for the defendants. From such judgment, the plaintiff appealed.

REVERSED.

Messrs Young & Moyle for appellant.

Geo. Q Rich, Esq., and Frank K. Nebeker, Esq., for respondents.

BASKIN, C. J. BARTCH, J., concurs. ROLAPP, District Judge, dissenting.

OPINION

BASKIN, C. J.

--This is an action of replevin. The answer denies the plaintiff's alleged right to the possession of about 700 head of sheep claimed from defendants, and alleges that the defendants are the owners of, and entitled to the possession of, the same. A jury being impaneled in the case, the plaintiff placed Orson Rumel upon the witness stand, and he testified as follows: "I know the signature of Earnest A. Purnell. Have seen him write his name several times. I saw him write his name to the promissory note." And after identifying the note as the one set out in the mortgage, he further testified "that at the time Mr. Purnell signed said note he signed what purported to be a chattel mortgage. The chattel mortgage was given to secure the above-mentioned note, and Mr. Purnell received $ 2,400 on the note and mortgage. No payments have been made by Mr. Purnell thereon, either principal or interest, excepting two interest payments. Mr. Purnell is still owing the bank the note. I witnessed the signature of Mr. Purnell to the mortgage, and after it was signed, acknowledged, and sworn to, and the notary's signature and seal to the affidavits attached, I took it myself and mailed it, addressed to the county recorder of Oneida county, State of Idaho." No objection was interposed by the defendants to this testimony.

The plaintiff then offered in evidence a chattel mortgage of a lot of sheep, in which were included the 700 in dispute, executed by one Earnest Purnell, of Cache county, Utah in favor of the plaintiff, to secure a note for $ 2,400, dated at Salt Lake City, September 5, 1900, and payable one year after date, with interest at the rate of eight per cent. per annum. The sheep at the time said mortgage was executed were on the range in Oneida county, State of Idaho. Among other stipulations, the mortgage contained the following: "It is further agreed and stipulated that if said mortgagor shall fail to make any payment, as in said promissory not provided, or in case said mortgagee shall at any time deem its debt insecure, the said mortgagee, or its assigns, may, in its option, declare the principal of said debt to be due, and may take possession of said mortgaged property wherever located, together with the increase thereon, if any, using all necessary force for that purpose."

Attached to the mortgage were the following affidavit and certificates of acknowledgment and recordation of mortgage:

"State of Utah County of Salt Lake--ss.: Earnest A. Purnell, the mortgagor, H. S. Young, the cashier and agent for the mortgagee, named in the foregoing mortgage, being duly sworn, severally declare, each on oath, that this chattel mortgage is made in good faith to secure the amount and debt therein specified, and without any design to hinder or delay the creditors of said mortgagor. Earnest A. Purnell. H. S. Young.

"Subscribed and sworn to before me a notary public in and for said county at Salt Lake City, Utah this 5th day of September, A. D. 1900. Hyrum J. Young. [Seal.]

"United States of America. State of Utah County of Salt Lake--ss.: On this 5th day of September, 1900, personally appeared before me Earnest A. Purnell, the signer of the above instrument, who duly acknowledged to me that he executed the same. Hyrum J. Young, N. P. My commission expires November 24, 1900."

Indorsed:

"Chattel Mortgage No. 480. Recorded at the request of H. S. Young, September 8, A. D. 1900, at 5 minutes past 9 a. m., in book B, Chattel Mortgages, page 123. D. J. Reynolds, recorder.

"State of Idaho, County of Oneida--ss.: I, D. J. Reynolds, recorder of Oneida county, Idaho, do hereby certify the above and foregoing to be a full, true, and correct copy of the chattel mortgage now on file in my office. Witness my hand and seal of my office at Malad City, Idaho, this the 16th day of September, 1901. [Signed.] D. J. Reynolds, recorder, by W. H. Richards, deputy."

Defendants' attorney objected to the admission of the mortgage in evidence on the following grounds: (1) The mortgage was not dated; (2) that the affidavit that it was made in good faith was sworn to by H. S. Young in his individual capacity, and not as an officer or agent of the plaintiff corporation; (3) that said affidavit alleged to have been sworn to by H. S. Young and Earnest A. Purnell did not contain, as is required by the statute of the State of Idaho, the word "defraud," or any word of similar import; (4) that the notary's certificate did not recite that Earnest A. Purnell was known to him to be, or proven on the oath of any one to be, the signer of the instrument, as is required by the statutes of the State of Idaho, to-wit, sections 2955 and 2958 of the Revised Statutes of Idaho of 1887; (5) for the reason that it was not recorded in the county of Cache, State of Utah; (6) that the alleged seal of the alleged county recorder of Oneida county, was not attested as provided in section 3378, 3387, subd. 7, Revised Statutes, Utah 1898; (7) that the evidence is insufficient to show that plaintiff is entitled to any of the relief prayed for. The objections were overruled, and the mortgage admitted "subject to said objections."

Plaintiff thereupon introduced evidence that the 700 sheep claimed were a part of the band of sheep which was mortgaged by the said Earnest A. Purnell, and of which he was the owner; that previous to the institution of this suit the plaintiff demanded from the defendants the sheep in dispute; and that the defendants refused to deliver them to the plaintiff. Hyrum J. Young, the notary public before whom the mortgage was acknowledged, testified, on behalf of plaintiff, in substance, that he was personally acquainted with the said Earnest A. Purnell, and that on or about the 5th of September, 1900, the said Purnell appeared before him, the said Hyrum J. Young, and made the affidavit and acknowledgment hereinbefore set out.

Plaintiff also introduced in evidence the said William Kidman's statement that he bought the sheep in question of Earnest A. Purnell some time in November, 1900; that at the time of the purchase the sheep were in Oneida county, State of Idaho; and that he brought them into Utah--and the following provisions of the Idaho Statutes:

"Sec. 3385. Chattel mortgages may be made upon all property, goods or chattels not defined by statute to be real estate."

"Sec. 3397. If the mortgagor of any property mortgaged in pursuance of the provisions of this chapter, while such mortgage remains unsatisfied, in whole or in part, willfully removes from the county or counties where the mortgage is recorded, destroys, conceals, sells, or in any manner disposes of the property mortgaged, or any part thereof, without consent of the holder of said mortgage, he is guilty of larceny and such sale or transfer is void."

"Sec. 2952. The proof of acknowledgment of an instrument may be made without this Territory, but within the United States, and within the jurisdiction of the officer, before either . . . a notary public," etc.

"Sec. 2955. The acknowledgment of an instrument must not be taken unless the officer taking it knows, or has satisfactory evidence, on oath or affirmation of a creditable witness, that the person making such acknowledgment is the individual who is described in, and who executed the instrument; or, if executed by a corporation, that the person making such acknowledgment is the president or secretary of such corporation."

"Sec. 2958. The certificate of acknowledgment, unless it is otherwise in this chapter provided, must be substantially in the following form: 'Territory of Idaho, County of -- ss.: On this . . . day of . . . in the year . . . before me (here insert the name and quality of the officer) personally appeared . . . known to me (or proved to me on the oath of . . .) to be the person whose name is subscribed to the within instrument, and acknowledged to me that he (or they) executed the same."

Also Session Laws of Idaho of 1899, p. 121, as follows:

"Section 1. That title 12 of chapter 4, sections 3386 and 3387, be amended so as to read as follows: 'Sec. 3386. A mortgage of personal property is void as against creditors of the mortgagor and subsequent purchasers, and incumbrances of the property in good faith and for value, unless: First. It is accompanied by the affidavit of the mortgagor that it is made in good faith and without any design to hinder, delay or defraud creditors. Second. It is acknowledged or proven as grants of real estate and the mortgage, or a true copy thereof, is filed for record with the county recorder of the county where such property is located, and kept.'

"Sec. 2. Section 3387 is amended to read as follows: 'Sec. 3387. Upon the receipt of any such instrument, the recorder shall endorse upon the back the time of receiving it, and shall file the same in his office, to be kept there for the inspection of all persons interested,'" etc.

"Sec 3. All acts and parts...