Donovan v. St. Anthony & Dakota Elevator Company

• Decision Date: 25 October 1899
• Citation: 80 N.W. 772,8 N.D. 585
• Court: North Dakota Supreme Court

80 N.W. 772

8 N.D. 585

E. I. DONOVAN v. ST. ANTHONY & DAKOTA ELEVATOR COMPANY

Supreme Court of North Dakota

October 25, 1899

Appeal from District Court, Cavalier County; Sauter, J.

Action by E. I. Donovan against the St. Anthony & Dakota Elevator Company. Verdict for defendant, and from an order granting plaintiff a new trial defendant appeals.

Reversed.

Reversed.

Cochrane & Corliss, for appellant.

J. C Monnet, for respondent.

OPINION

YOUNG, J.

But one question is presented by this appeal, and that is whether a mortgagee in a chattel mortgage is qualified to act as an attesting and subscribing witness to its execution. Briefly the preliminary facts are these: Plaintiff has a chattel mortgage covering a quantity of wheat which was purchased and received by the defendant from plaintiff's mortgagor, and admittedly without actual notice of plaintiff's mortgage thereon. The mortgage is properly signed by the mortgagor. To the left of his signature is the attestation, first, the words, "Signed, sealed, and delivered in the presence of," and just underneath them the signatures of the two witnesses, E. I. Donovan and Charles C. Keenan. Donovan is the mortgagee, and is so named in the instrument. The mortgage was filed in the proper office. Plaintiff sues for the alleged conversion of the grain. At the trial in the District Court a verdict was directed for the defendant upon the ground that the mortgage was not witnessed as required by law, and that the filing thereof did not, therefore, impart constructive notice of its existence. Later a new trial was granted, upon plaintiff's motion. This appeal is from the order granting a new trial.

It is apparent that in reversing his former conclusion the District Judge was controlled by the recent case of Fisher v Porter (S. D.) 11 S.D. 311, 77 N.W. 112, in which that court, in passing upon this identical question, and under statutes which are the same as those in force in this jurisdiction, held squarely that it is competent for a mortgagee to witness his own mortgage. Section 4384, Comp. Laws, is the same in language as section 4738, Rev. Codes, and reads as follows: "A mortgage of personal property must be signed by the mortgagor in the presence of two persons, who must sign the same as witnesses thereto, and no further proof or acknowledgment is required to admit it to be filed." After quoting this section, the South Dakota Court said: "Manifestly, the foregoing provision should be construed with reference to the law of the state relating generally to the competency of witnesses, and unless some limitation can be found as to the character of the persons in the presence of whom the mortgagor must sign his name, and by whom a chattel mortgage must be witnessed, we would not be justified in holding that a mortgagee, on account of his interest, is not a person, in contemplation of the statute, authorized to become a subscribing witness. Under a statute like ours, requiring, without any restriction, that a chattel mortgage, in order to be filed, must be witnessed by two persons, and providing that no person offered as a witness can be excluded or excused from testifying on account of his interest in the event of the action or proceeding, we perceive no valid reason for holding a mortgagee disqualified as an attesting or subscribing witness. Comp. Laws, § 5260. It seems entirely consistent with the legislative aim to hold that a person who would be a competent witness in an action involving the subject-matter of a deed or mortgage has the legal capacity to become a subscribing witness thereto; and, under statutes measurably less compatible with the doctrine than our own, it has been so held. Johnson v. Turner, 7 Ohio 216; Welsh v. Lewis, 71 Ga. 387; 2 Jones Real Prop. 1099; Webb, Record Titles, 127." This decision evidently stands alone in announcing such a conclusion, for neither the exhaustive research of counsel nor our examination of the authorities has discovered a single case making a similar holding as to the competency of a mortgagee to attest the execution of his own mortgage. Further, the decision is not supported by the two cases upon which it purports to be based. In neither case was the question of competency of the immediate parties to the instrument to act as attesting witness involved. In Welsh v. Lewis, 71 Ga. 387, the holding was merely that it was not illegal for a brother-in-law of the mortgagee to witness the mortgage. In Johnson v. Turner, 7 Ohio 216, pt. 2, it was objected that one of the subscribing witnesses to a certain trust deed to a banking corporation was disqualified as an attesting witness by reason of being a stockholder. Because of that interest, he was excluded from testifying as a witness as to such deed under the law then prevailing in that state. Nevertheless the court held him competent to attest the deed, utterly repudiating the doctrine that the test is competency to testify in court; using this language: "The statute (volume 31, p. 346, § 1) requires the deed to be executed 'in the presence of two witnesses, who shall attest such signing and sealing and subscribe their names to such attestation.' Unless the express provisions of this statute, or its plain inference, lead to the conclusion that the witnesses to a deed must be credible and competent to prove its execution at the time of their attestation, and that such was the intention of the legislature, reluctantly indeed would this Court adopt such an opinion. If such be the law, it is time to look around us and ascertain by whom our deeds bear witness. Who ever instituted an inquiry, when a witness was called to attest a deed, whether he was competent or incompetent to testify in a court of justice; whether persons might not subsequently be found who would impeach him for the want of character for truth; whether conviction for crime, or the want of a correct opinion of the providence of God, according to the notions of others, might not exclude him from giving evidence? Precarious indeed are our titles, if such...