Drum Standish Comm'n Co. v. First Nat'l Bank & Trust Co. of Okla. City

• Decision Date: 10 April 1934
• Docket Number: Case Number: 22588
• Citation: 31 P.2d 843,168 Okla. 400,1934 OK 225
• Court: Oklahoma Supreme Court
• Parties: DRUM STANDISH COMMISSION CO. v. FIRST NATIONAL BANK & TRUST COMPANY OF OKLAHOMA CITY.

1934 OK 225

31 P.2d 843

168 Okla. 400

DRUM STANDISH COMMISSION CO. v. FIRST NATIONAL BANK & TRUST COMPANY OF OKLAHOMA CITY.

Case Number: 22588

Supreme Court of Oklahoma

Decided: April 10, 1934

Syllabus

¶0 1. Chattel Mortgages--Filing as Constructive Notice--Effect of Filing Before Property Brought Into County.

Constructive knowledge of the existence of a chattel mortgage lien on personal property is imparted to subsequent purchasers, incumbrances, and creditors by filing the mortgage executed on the same property, ty is situated in accordance with the provisions of section 11277, O. S. 1931. If the property mortgaged is not situated in the county where the mortgage is filed at the time of the execution and filing thereof, but is intended to be removed to such county and later becomes situated therein, the mortgage on file becomes constructive notice from the date of the arrival of the property within the county.

2. Same-Effect of Filing Where Property Removed From County.

When mortgaged personal property is removed from one county to another, chattel mortgages on file in the county from which it is removed impart constructive notice to subsequent purchasers, incumbrances, and creditors for a period of 120 days after such removal by virtue of section 11279, O. S. 1931.

3. Trial--Sufficiency of Instructions in Absence of Request.

Where the trial court has given instructions applicable to the issues and evidence, failure to instruct upon a particular phase of issue does not constitute error in the absence of a request.

4. Chattel Mortgages--Sufficiency of Description of Property to Put Third Party Upon Inquiry.

A description in a chattel mortgage sufficient to put a third party upon inquiry, which inquiry when pursued will enable him to ascertain the property intended to be included in the mortgage, is sufficient.

5. Same--Original Demand and Mortgage not Extinguished by Execution of Renewal Note.

The execution of a renewal note in lieu of a note previously given is not a payment or extinguishment of the original demand nor of a chattel mortgage given to secure the payment of the same; however, if at the time such renewal note is executed, the old mortgage is released and a new mortgage executed on the same property, a presumption arises that the old mortgage lien has been extinguished. This presumption may be overcome by evidence establishing that it was not intended by the parties that the old mortgage lien should be extinguished.

6. Trial--Instructions Viewed in Light of Evidence--Inaccurate Statements not Necessarily Prejudicial.

Instructions of the trial court must be viewed in the light of the evidence upon which they operate. The question of whether an inaccurate statement of law in an instruction constitutes prejudicial error depends as much on the evidence before the jury as upon the abstract accuracy of the language used.

7. Appeal and Error--Review--Failure to Cite Authorities.

Assignments of error presented by counsel in their brief unsupported by authority will not he noticed on appeal unless it is apparent without further research that they are well taken.

Appeal from District Court, Murray County; W. G. Long, Judge.

Action in replevin by the First National Bank & Trust Company of Oklahoma City against Omar Power; the Drum Standish Commission Company intervening. Judgment for plaintiff, and intervener appeals. Affirmed. Second petition for rehearing denied. ANDREWS, J., not participating.

H. W. Fielding, R. R. Brewster, and Fisher & Whitten, for plaintiff in error.

Wilson, Wilson & Owens and Young & Haste, for defendant in error.

BUSBY, J.

¶1 This is an action in replevin in which two suits were consolidated in the court below and tried as one. It involves a dispute over the right to possession of 116 head of cattle between the holders of two chattel mortgages. The First National Bank & Trust Company of Oklahoma City, plaintiff in the trial court, claims under one mortgage and the Drum Standish Commission Company, intervener in the court below, claims under another. The owner of the cattle, Omar Power, disclaims any substantial interest therein. He was the defendant in the trial court. The trial of the case to a jury in the district court of Murray county resulted in a judgment in favor of the plaintiff for the possession of the cattle, and the intervener appeals. The parties will be referred to as they appeared in the trial court when not otherwise designated.

¶2 The principal question to be determined is whether the evidence supports the view that the intervener was charged with constructive notice of a prior mortgage lien in favor of the plaintiff. There are other primary questions presented by the brief, as well as questions subordinate to and included within the principal question above stated. These questions will be discussed as we proceed with the opinion. As a basis for such discussion we must review the material facts.

¶3 At the beginning of the sequence of events which terminated in this litigation, one Jesse C. Moore was the operator and owner of a cattle ranch which included about 14,500 acres of land. This land was divided into several tracts or pastures, some of which were separated from other portions of the ranch by intervening territory. These several pastures were situated in three different Oklahoma counties, to wit, Johnston, Murray, and Pontotoc. Each of the different pastures was known by an individual name. In order to avoid confusion we shall generally refer to the pastures by location.

¶4 The cattle involved in this controversy were a part of 1,035 head which were purchased in Texas by the rancher Moore in the fall of 1928. They were shipped from Texas in different lots and unloaded at Scullin in Murray county. Upon being unloaded they were placed in a Murray county pasture, where they were dehorned. After being dehorned, they, or at least a considerable portion of them, were taken to other pastures included in the Moore ranch. In connection with the distribution of these cattle the record is somewhat unsatisfactory. We find no definite evidence that any of the cattle were immediately taken to pastures located in Pontotoc county.

¶5 The purchase of the cattle in question was financed by the plaintiff, First National Bank & Trust Company (then known as the American First National Bank, in Oklahoma City). For that purpose the sum of $ 40,000 was advanced by the plaintiff to Moore, who, on November 14, 1928, executed and delivered to the plaintiff his promissory note for that sum payable on May 13, 1929. For the purpose of securing the payment of the note and such future advances as might be made by the plaintiff for the maintenance or transportation of the property mortgaged, the debtor Moore executed and delivered a chattel mortgage covering the 1,035 head of cattle bought in Texas. (The sufficiency of the description in the mortgage to identify the property mortgaged or to constitute constructive notice to subsequent incumbrancers is challenged by the intervener. Details bearing upon this question will be reserved until the subsequent portions of this opinion.) This mortgage was filed in the office of the county clerk of Pontotoc county on November 15, 1928. Unquestionably the plaintiff at the time of filing this mortgage believed that the mortgaged chattels then were, or soon would be, located in Pontotoc county. However, apparently very few, if any, of the cattle covered by the mortgage were taken into Pontotoc county until April of 1929.

¶6 There is considerable conflict and confusion in the evidence as to the location of the cattle covered by the mortgage, but the record supports the view that some of the cattle included, in the mortgage arrived in Pontotoc county in April, 1929, and that other groups of the same cattle were moved into Pontotoc county in June and July of 1929. The plaintiff introduced testimony tending to establish that about the last part of July or the first part of August, 1929, 534 head of cattle, including those involved in this litigation, were removed from pastures situated wholly or partially in Pontotoc county to a pasture in Johnston county known as Meadow pasture. On September 2, 1929, one Omar Power, defendant, purchased from Jesse Moore 600 cattle then situated in Meadow pasture, including the cattle involved in this suit. In making this purchase Power was financed by the Drum Standish Commission Company, intervener herein. Power, being indebted to the intervener for the sum of $ 37,488.55, executed his chattel mortgage to the intervener on the 600 head of cattle purchased by him to secure the payment of that debt. This mortgage was executed on September 3, 1929, and filed for record in Johnston county on the 5th day of the same month.

¶7 It is the claim of Drum Standish Commission Company that as a subsequent incumbrancer it was not charged with knowledge either constructive or actual of the prior mortgage of the plaintiff. The plaintiff, on the other hand, urges that the intervener was charged with constructive knowledge of plaintiff's mortgage at the time it acquired its mortgage interest in the property.

¶8 In this state constructive knowledge of the existence of a chattel mortgage is imparted to subsequent creditors, purchasers, and incumbrancers by filing the same in accordance with the provisions of section 11277, O. S. 1931, in the county where the property is situated at the time the mortgage is executed. However, if the property mortgaged is not located in the county where the mortgage is filed at the time of the execution and filing thereof, but is intended to be removed to such county and later becomes situated therein, the mortgage on file becomes constructive notice from the date of the arrival of the property within the county. In such case the mortgagee is not required to refile his mortgage after the arrival of the property. Mitchell et al. v. Guaranty Bank, 68 Okla. 110, 172 P. 47.

¶9 Assuming, as we must, in...