First National Bank v. Bedingfield
| Decision Date | 13 May 1907 |
| Citation | 102 S.W. 683,83 Ark. 109 |
| Parties | FIRST NATIONAL BANK v. BEDINGFIELD |
| Court | Arkansas Supreme Court |
Appeal from Miller Chancery Court; James D. Shaver, Chancellor affirmed.
STATEMENT BY THE COURT.
Appellant the First National Bank of Honey Grove, Texas, 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, Arkansas, 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 that 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 ?or recording. The complaint then set up that the amount due on the notes was past due and unpaid. The complaint then alleged that the appellee Bedingfield 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 appellees 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 Bedford, Zinnecker & Thompson 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 Bedford, Zinnecker & Thompson, 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 denied 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 co-defendants, Bedford, Zinnecker & Thompson, 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:
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 court house.
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 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 25th, 1905, he indorsed the mortgage: Witness then recorded the mortgage in full. Witness says that he erased 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 filing mortgages. There was no fee paid or tendered him prior to November 25, 1905. The mortgage then, as it appears in the evidence, bore the following indorsements as explained by the witness Sanderson to-wit:
Witness further explains how the indorsements were made as follows:
Appellant did not receive the instrument back with certificate of record, and yet appellant made no inquiry of the recorder from the time its letter was sent to the county clerk as to what had become of the mortgage, whether it had been recorded or not, until its attorney appeared upon the scene
November 25, 1905, and had same filed for record, paying the fee therefor.
The cashier testified that there were no erasures on the back of the mortgage when he sent it to the clerk.
The court rendered a decree in favor of appellee Bedingfield against appellant, adjudging appellee's mortgage a prior and superior lien, and giving appellee judgment against his co-defendants Bedford and Zinnecker for $ 939.91, and giving appellant judgment against Bedford and Zinnecker for $ 2373.51 principal, interest, attorney's fees and cost except that pertaining to the receivership. The appellant bank appealed; also Bedford and Zinnecker appealed from the judgment against them in favor of appellee Bedingfield on his cross-complaint. Other facts are stated in the opinion.
Decree affirmed.
John N. Cook and Pratt P. Bacon, for appellant; J. W. Gross, of counsel.
1. As to the contention that there was no such firm as Bedford, Zinnecker & Thompson, the most that can be contended for on this point is that Bedford and Zinnecker used that name at all times, and Thompson used that name and Thompson, Bedford & Zinnecker interchangeably. Such being the case, a contract made by the firm in either name would be binding. 79 Ky. 270; 8 Baxt. (Tenn.) 517; 5 W.Va. 391; 22 Am. & Eng. Enc. of L. (2 Ed.) 79, and note 7. If appellee could have been affected at all by the use of two firm names, it would have been in making search of the mortgage index, and as to that does not the statute require the recorder to index alphabetically the name of each grantor in an instrument? Kirby's Digest, § 6846. However, an index is no part of the record. 52 Am. Rep. 475; 91 Am. Dec. 103; 59 F. 184; 95 F. 3.
2. Appellant ought not to be bound by the mere recollection of the recorder as against the testimony of the county clerk and the printed directions on the back of the mortgage and appellant's letter accompanying it. The filing statute does not apply except where the instrument is indorsed by the mortgagee. Kirby's Digest, § 5412. And every mortgage is considered as recorded from the time it is delivered for record. Kirby's Digest, § 6844. It was the recorder's duty, when he accepted the mortgage, to file...
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