First Nat. Bank of Holdenvllle v. Kissare

• Decision Date: 13 November 1908
• Docket Number: Case Number: 690 Ind Ter T
• Citation: 22 Okla. 545,98 P. 433,1908 OK 218
• Parties: FIRST NAT. BANK OF HOLDENVlLLE v. KISSARE.
• Court: Oklahoma Supreme Court

1908 OK 218

98 P. 433

22 Okla. 545

FIRST NAT. BANK OF HOLDENVlLLE v. KISSARE.

Case Number: 690 Ind Ter T

Supreme Court of Oklahoma

Decided: November 13, 1908

Syllabus

¶0 CHATTEL MORTGAGES--Apparent Title to Personalty--Estoppel. Where, in an action of replevin brought by K. for certain cattle taken by defendant in foreclosure of a chattel mortgage as the property of B., the evidence disclosed that K, the owner of said cattle, while living in another state, branded them in B.'s brand and sent them into what is now this state to be by him pastured for hire, and that while so in his possession were mortgaged to defendant by B. as his property to secure a loan to B. Held, that K. is estopped to set up title to the property as against the defendant.

Error from the United States Court for the Western District of the Indian Territory; Louis Sulzbacher, Judge.

Action by G. W. Kissare against the First National Bank of Holdenville. Judgment for plaintiff, and defendant brings error. Reversed and dismissed.

On December 27, 1902, G. W. Kissare, defendant in error, plaintiff below, brought suit in replevin in the United States Court for the Indian Territory, Western District, at Wewoka, against the First National Bank of Holdenville, plaintiff in error, defendant below, to recover 15 three year old steers, 24 cows, and 9 calves, 9 two year old steers, 6 four year old steers, 2 two year old heifers, and a yearling steer: all but the latter and the calves being branded T on the left side and K on the left thigh. The defendant gave a retaining bond, and on February 7, 1903, filed answer, which was, in effect, a general denial, set up title to the property in one J. T. Butler, and claimed a special ownership therein, and right of possession thereto by virtue of a chattel mortgage executed thereon by said Butler to it on June 2, 1902, to secure a loan to him of $ 3,000. There was trial to a jury which resulted in a verdict for plaintiff, and, after motion for a new trial filed and overruled, defendant prosecuted a writ of error to the United States Court of Appeals in the Indian Territory and the cause is now before us for review as the successor of that court.

Crump & Rogers and J. W. Crump, for plaintiff in error.

W. P. Langston, for defendant in error.

TURNER, J.

¶1 (after stating the facts as above). It is urged that the judgment of the trial court is contrary to law. There is very little, if any, conflict in the testimony. It discloses that in the spring of 1901 Kissare, defendant in error, was living on a farm near Conway, Ark.; that J. T. Butler, his son-in-law, was living on a ranch near Holdenville, Ind. T.; that the brand of the former was a K on the left thigh and that of the latter a T on the left side; that about that time Butler went to Arkansas and bought from Kissare about 100 head of cattle bearing his brand, and shipped them to his ranch near Holdenville, but before shipping branded them in his own brand; that in the spring of 1902 he again went to Arkansas and got 100 head of mixed cattle, the property of Kissare, all bearing his brand, which Butler agreed to ship to his ranch and pasture for hire, and which were before shipment branded by Kissare in Butler's brand; that they were billed out from Conway by Kissare in Butler's name consigned to him at Holdenville, and from there, upon their arrival, were taken by Butler to his ranch and intermingled with the first shipment; that on June 2, 1902, Butler, being indebted to plaintiff in error in the sum of $ 1,000, to secure a loan of $ 3,000, executed to plaintiff in error, who accepted it in good faith, a chattel mortgage, without the knowledge or consent of Kissare, on 302 head of cattle including those aforesaid, described as "of various colors and all branded T on any part of the animal," said mortgage being "intended to cover all the cattle I own in this brand, and are all free from incumbrance and I guarantee the number to be not less than stated." It also covered the increase, and provided that the "marks and brands used to describe the above stock are the holding marks and brands and carry the title, although said property may have other marks...