First Nat. Bank v. Bedford

Citation102 S.W. 683
PartiesFIRST NAT. BANK OF HONEY GROVE, TEX., v. BEDFORD et al.
Decision Date13 May 1907
CourtSupreme Court of Arkansas

Suit by the First National Bank of Honey Grove, Tex., against Joe Bedingfield and others, in which defendant Joe Bedingfield filed a cross-complaint against his codefendants Bedford and Zinnecker. From a decree in favor of defendant Bedingfield against plaintiff, plaintiff appeals, and from a decree in favor of defendant Bedingfield against his codefendants they appeal. Affirmed.

The appellant filed its complaint, alleging that appellees were partners under the firm name of Bedford, Zinnecker & Thompson; that appellees were indebted to appellant in certain sums specified, evidenced by promissory notes and secured by mortgage on personal property described therein owned by the firm; that on March 13, 1905, appellant duly filed said mortgage for record with the recorder of Miller county, Ark., and paid him $1.25 as the county tax and fee for recording the mortgage, but that the recorder failed, neglected, and refused to record said mortgage until the 25th of November, 1905, when he spread the mortgage upon the record at page 487 of the mortgage record of the county; that appellant believed same was recorded in accordance with law, and did not know the mortgage had not been recorded until November 25, 1905, when it directed the recorder to record same as it had previously requested him to do, and again paid him the county tax and fee for recording. The complaint then set up that the amount due on the notes was past due and unpaid. The complaint then alleged that appellee had obtained possession of the property, claiming the right to hold same under an alleged prior mortgage; that unless restrained appellee would proceed to sell the property under the mortgage set up by him; that the property was probably insufficient to satisfy appellant's prior mortgage; that the mortgage of appellee was void because of want of authority in the person who executed it; that the property would likely be lost to appellant. The prayer was for a restraining order preventing appellee from selling the property for a receiver to take charge of and hold same under the orders of the court, and that the property be sold, etc., to satisfy appellant's claim. The chancellor granted the prayer for restraining order, and appointed a receiver to take charge of the property. Appellee Bedingfield answered, denying all the material allegations of the complaint, and set up that on April 17, 1905, the firm of Thompson, Bedford & Zinnecker was indebted to him, and executed a mortgage to secure present indebtedness and future advances; that before accepting the mortgage he examined the proper records of Miller county and did not find any mortgage given by the firm of Thompson, Bedford & Zinnecker, and therefore did not have any knowledge of appellant's mortgage. Bedingfield alleged that there was no such firm in Miller county as Bedford, Zinnecker & Thompson; that appellant's mortgage was not executed and acknowledged by the grantors therein, nor by their authority; that the mortgage was vague in the description of the property, and for all these reasons was void as to appellee Bedingfield. He admitted that appellant's mortgage was "filed," but denies that it was indorsed and signed as required by law, and averred that the recorder followed instructions in "filing the mortgage." Appellee Bedingfield made his answer a cross-complaint against his codefendants Thompson, Bedford & Zinnecker, and asked and obtained judgment against them for want of an answer to his cross-complaint as to them. The mortgage, under which appellant claims, was sent in the following letter written by its cashier to the county clerk of Miller county, to wit: "Honey Grove, Texas, March 11, 1905. County Clerk, Miller County, Texarkana, Arkansas — Dear Sir: Inclosed please find chattel mortgage by Bedford, Zinnecker & Thompson to this bank for record. Advise us your fee which we will remit, you may then return the mortgage to us. [Signed] J. A. Underwood. Inclosure mortgage." Appellant claims that this letter was a direction to the circuit clerk and recorder to record the mortgage. But it will be observed that the letter was sent to the county clerk, and there is no affirmative evidence on behalf of appellant that the circuit clerk and recorder received the letter. On the other hand, the circuit clerk and recorder shows positively that he did not receive the letter as it appears hereafter.

The county clerk to whom this letter was sent testified that he could not recall receiving the mortgage, nor the date he received the letter, that he received many such letters, and that it was his universal custom to turn them over to the clerk of the circuit court, who is the recorder. He had no recollection whatever of turning over the mortgage to J. D. Sanderson, the circuit clerk and recorder, but he believed that, if he turned over the mortgage, he also turned over the letter. He remembered from copy that he received the letter. If he turned the mortgage over to J. D. Sanderson, he did not remember that he told him to file or record same. Sanderson, the circuit clerk and recorder, had a separate office from the office of the county clerk in the courthouse.

J. D. Sanderson, the circuit clerk and recorder, testified that the mortgage under which appellant claims was handed him by the county clerk, but that he never saw or received the letter. He received the mortgage on March 13, 1905, from the hands of the county clerk, who said: "Here is a mortgage to be filed, but there is no money with it." On the back of the mortgage was printed the words: "Filed for record the ____ day of ____, A. D. 190-, at ____, o'clock m. ____, County Clerk, ____ County, by ____, Deputy." The written words "for record," marked out on the back of the mortgage, were in the handwriting of his deputy. The other indorsement on the mortgage was in the handwriting of the witness. That left the indorsement: "Filed 13th day of March, 1905, at 9 o'clock. J. D. Sanderson, Clerk." On November 25, 1905, he indorsed the mortgage: "Filed for record November 25th, 1905. J. D. Sanderson, Clerk. Paid $1.50." Witness then recorded the mortgage in full. Witness says that heerased the words "for record," because he was told by the county clerk that the mortgage was to be filed. He filed it, and did the usual things with reference to filed mortgages. There was no fee paid or tendered him prior to November 25, 1905. The mortgage, then, as it appeared in the evidence, bore the following indorsements as explained by the witness Sanderson to wit:

                for record
                   "Filed for record the 13th day of March
                A. D. 1905, at 9 o'clock a. m
                   "J. D. Sanderson, County Clerk
                                     "____ County
                                       "By ____, Deputy."
                

"Filed for record November 25th, 1905.

                                "J. D. Sanderson, Clerk
                

"Paid $1.50."

Witness further explains how the indorsements were made as follows: "The attorney for the bank came in on the 25th of November, 1905, and received from the files this mortgage, and asked that it be recorded. I handed it to Mr. Kirby (my deputy), and told him to file it for record, and he wrote the words `for record' above the first filing. I then told him that it would have to take a new date, and I took it myself and filed it for record, and the words that he wrote `for record,' were...

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