Fair v. The Citizens' State Bank of Sterling
| Decision Date | 07 January 1905 |
| Docket Number | 13,878 |
| Parties | D. J. FAIR et al. v. THE CITIZENS' STATE BANK OF STERLING, KANSAS |
| Court | Kansas Supreme Court |
Decided January, 1905.
Error from McPherson district court; MATTHEW P. SIMPSON, judge.
Judgment affirmed.
SYLLABUS BY THE COURT.
1. CHATTEL MORTGAGE--Renewal Affidavit--Competency of Notary Public. A chattel mortgage, regular upon its face, duly filed for record, and accompanied by an affidavit of renewal, filed in proper time and regular upon its face, and regular in fact except for the latent defect that the notary public who administered the oath was a stockholder in the mortgagee corporation, imparts notice as fully as if such defect did not exist.
2. CHATTEL MORTGAGE--Act of Notary Ministerial, Not Judicial. The act of a notary public in administering the oath, in such case, is ministerial and not judicial; it is, at most, voidable--not void.
Prigg & Williams, and Frank Doster, for plaintiff in error.
John D. Milliken, Samuel Jones, and Ansel R. Clark, for defendant in error.
CLARK A. SMITH. All the Justices concurring
On November 16, 1896, H. L. Sturgeon was indebted to the Citizens' State Bank of Sterling, Kansas, in the sum of $ 856.33, and gave his note therefor, due on or before April 1, 1897. To secure its payment he gave the bank a chattel mortgage on 12,000 bushels of corn, a portion of which was described as having been gathered and cribbed, the remainder to be gathered and cribbed on lot 280 on Broadway, Sterling, Kan. This chattel mortgage was filed for record in the office of the register of deeds of Rice county, Kansas, where the parties resided and the mortgaged property was located, on the day following its execution.
On October 26, 1897, a renewal affidavit in regular form, made by Thomas Atkinson, the cashier of the bank, was filed in the office of the register of deeds of said county. This affidavit was made before Curtis A. Stubbs, a notary public, who, at the time, was assistant cashier and a stockholder of the bank.
Lots 280 and 282 on Broadway are in the same block, and being in the same enclosure they are evidently contiguous. The corn in controversy was cribbed on lot 282 and not 280, as described in the mortgage; there was no corn cribbed on lot 280. There is also some question as to the particular tract of land upon which the corn was raised. We have examined the evidence with much care and conclude that the mortgage is not void for uncertainty of description of the property. It seems quite possible that a third person, having the description given in the chattel mortgages, could, by the aid of such inquiries as the chattel mortgage itself suggests, identify the corn which was mortgaged. (Mills v. Kansas Lumber Co., 26 Kan. 374.)
A portion of the corn cribbed on said lot 282 was shelled by Sturgeon and sold to plaintiffs in error about September 1, 1898. This action was brought in the district court of Rice county by the bank to recover from them for so much of the value of the corn as would pay the amount remaining due on the note given by Sturgeon. After one mistrial and a second trial that resulted in a judgment in favor of the plaintiff in error, which was reversed by this court (66 Kan. 761, 71 P. 1125), a third trial resulted in a judgment in favor of the bank. The defendants bring the case here again for review.
The plaintiffs in error in their brief make twenty assignments of error, but urge only a few of them. The first and most difficult question presented is, Was the renewal affidavit void by reason of the fact that the notary public who administered the oath was at the time an officer and stockholder of the mortgagee? It is a question upon which the authorities differ. Some, by analogy at least, hold it void; others that it is voidable only. Some reason that such act of an officer interested would be void or voidable accordingly as the transaction is or is not tainted with fraud or undue advantage taken. That one who is of counsel, or is related to either party, or is otherwise interested in...
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...thereof operates as constructive notice." ¶16 Other leading cases in support of this position are: Fair et al. v. Citizens'' State Bank of Sterling, 70 Kan. 612, 79 P. 144, 67 L.R.A. 851; Blanton v. Bostic, 126 N.C. 418, 35 S.E. 1035; Boswell v. First Nat. Bank of Laramie, 16 Wyo. 161, 92 P......
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