F. E. Creelman Lumber Co. v. J. A. Lesh & Co.

• Decision Date: 05 November 1904
• Parties: F. E. CREELMAN LUMBER CO. v. J. A. LESH & CO.
• Court: Arkansas Supreme Court

83 S.W. 320

F. E. CREELMAN LUMBER CO. v. J. A. LESH & CO.

Supreme Court of Arkansas.

November 5, 1904.

Appeal from Chicot Chancery Court; Marcus L. Hawkins, Chancellor.

Action by J. A. Lesh & Co. against the F. E. Creelman Lumber Company. A judgment was rendered in favor of plaintiffs, and defendant appeals. Affirmed.

Baldy Vinson and J. H. Carmichael, for appellant.

WOOD, J.

When the decree was rendered the act of April 11, 1901 (Acts 1901, p. 164, No. 98), which provides that judicial notice shall be taken of the laws of other states, was in force. It was therefore unnecessary to prove the laws of Indiana upon the subject of recording chattel mortgages. The court was correct in finding that the mortgage "was duly executed, acknowledged, and recorded in Fulton county, Indiana, where the mortgagor resided and the property was situated when the mortgage was executed." Section 4913, Rev. St. Ind. 1881.

In Hall v. Pillow this court held that the lien of a mortgage in another state was not displaced by the wrongful removal of the property from that state to this. 31 Ark. 32. The authorities generally hold that a chattel mortgage, good according to the laws of the place where the mortgage is executed and recorded, and the property is then situate, will be good, by comity, in any state to which the property may be afterwards removed by the mortgagor, unless there is some statute in such state to the contrary—this, too, as against an innocent purchaser for value from the mortgagor. In some cases it is said the rule obtains even though the property may have been removed with the consent of the mortgagee. Shapard et al. v. Hynes et al., 104 Fed. 449, 45 C. C. A. 271, 52 L. R. A. 675; Alferitz v. Ingalls (C. C.) 83 Fed. 964; and authorities cited in both cases. See, also, authorities cited at page 1061, Pingrey, Chat. Mort. § 435; Jones, Chat. Mort. § 260. In a few states a different rule prevails. Montgomery v. Wight, 8 Mich. 143; Corbett v. Littlefield, 84 Mich. 30, 47 N. W. 581, 11 L. R. A. 95, 22 Am. St. Rep. 681; McCabe v. Blymyre, 9 Phila. (Pa.) 615. These cases, it will be observed, treat the chattel mortgage as giving a mere lien, and not a transfer of title. In our state it is different. Whittington v. Flint, 43 Ark. 504, 51 Am. Rep. 572.

We do not decide in this case what would be the effect of the consent of the mortgagee to the removal of the property. That question is not raised. The mortgagee is seeking here to enforce a mortgage which he has duly established according to the laws of Indiana. There is no allegation in the answer and no proof that the property was moved from that state to this with his consent. It will not be presumed that the mortgagee did any act to waive his rights under the mortgage.

Affirm.

HILL, C. J. (concurring).

The opinion of the majority is fully concurred in, but it leaves open and undetermined the question as to the consent of the mortgagee to the removal of the mortgaged property from the state when mortgaged in this state; and that question should be concluded by the...