Fisher v. Porter

• Citation: 77 N.W. 112,11 S.D. 311
• Parties: FISHER et al. v. PORTER et al.
• Decision Date: 18 November 1898
• Court: Supreme Court of South Dakota

77 N.W. 112

11 S.D. 311

FISHER et al. v. PORTER et al.

Supreme Court of South Dakota

November 18, 1898

Appeal from circuit court, Hughes county; Loring E. Gaffy, Judge.

Action by William Fisher and John Farnsworth against Walter R Porter and others. There was a judgment for defendants, and plaintiffs appeal. Reversed.

Horner & Stewart, for appellants. Albert Gunderson and M. G. Sinon for respondents.

FULLER J.

That as a matter of law, on account of a defective description, the mortgage is void under which is claimed the right to immediate possession of 25 cattle described therein, and that the evidence fails to show actual notice or to identify the property, was the theory upon which the trial court directed a verdict in favor of the defendants, after admitting said mortgage in evidence; and plaintiffs appeal from a judgment accordingly entered.

This mortgage was executed at Ft. Pierre, Stanley county, on the 1st day of November, 1893, by the defendant Walter R. Porter, to appellants' assignor, who signed the same as one of the witnesses, and the property in controversy is therein described as follows: "200 head of mixed cattle, males and females, from two to five years old, branded Wm--P on left side, *** in his possession in the county of Stanley, South Dakota, together with the increase thereof." Although the instrument was duly filed, the court concluded that appellants could assert no rights thereunder, because the foregoing description is insufficient to impart notice to third parties. Some doubt also seemed to exist as to the legal capacity of a mortgagee to become a subscribing witness. Section 4384 of the Compiled Laws provides that "a mortgage of personal property must be signed by the mortgagor in the presence of two persons, who must sign the same as witnesses thereto, and no further proof or acknowledgment is required to admit it to be filed." Manifestly, the foregoing provision should be construed with reference to the law of the state relating generally to the competency of witnesses, and unless some limitation can be found as to the character of the persons in the presence of whom the mortgagor must sign his name, and by whom a chattel mortgage must be witnessed, we would not be justified in holding that a mortgagee, on account of his interest, is not a person, in contemplation of the statute, authorized to become a subscribing witness. Under a statute like ours, requiring, without any restriction, that a chattel mortgage, in order to be filed, must be witnessed by two persons, and providing that no person offered as a witness can be excluded or excused from testifying on account of his interest in the event of the action or proceeding, we perceive no valid reason for holding a mortgagee disqualified as an attesting or subscribing witness. Comp. Laws, § 5260. It seems entirely consistent with the legislative aim to hold that a person who would be a competent witness in an action involving the subject-matter of a deed or mortgage has the legal capacity to become a subscribing witness thereto; and, under statutes measurably less compatible with the doctrine than our own, it has been so held. Doe v. Turner, 7 Ohio, 504; Welsh v. Lewis, 71 Ga. 387; 2 Jones, Real Prop. 1099; Webb, Record Titles, 127.

After the defendant Porter had, without objection, testified, in appellants' behalf, merely that he was the mortgagor, and in that capacity signed the instrument, counsel for respondents asked and obtained leave of court to cross-examine the witness at that time with reference to its execution thuswise, and over the following objections "Counsel for plaintiffs object to any cross-examination of the witness upon questions they have not asked him. The Court: The objection is overruled. (Exception taken.)" Cross-examination of the witness Porter by counsel for defendants: "Q. Mr. Porter, look at the name, 'Glenn Steere,' attached to that instrument, and I will ask you if Glenn Steere was present when you executed that instrument, or at any time when you executed and delivered that instrument. Counsel for Plaintiffs: Object as incompetent, irrelevant, and immaterial, and not proper cross-examination. The Court: Objection is overruled. (Exception taken.) A. He was not. Q. I will ask you whether or not it is not a fact that the instrument was simply executed by you in blank. Counsel for Plaintiffs: Objected to as incompetent, irregular, and immaterial, and leading, and not proper cross-examination. The Court: The objection is overruled. (Exception taken.) A. It is as it is now, with the exception that it was not signed by the witnesses. Q. You may state who, if any one, was present when you signed that instrument. Counsel for Plaintiffs: To that we object as incompetent, improper, not proper cross-examination. The Court: The objection is overruled. (Exception taken.) A. Mr. Eugene Steere. Mr. Steere was the only person present besides myself. Q. Was Glenn Steere's name ever attached to that instrument by your knowledge or consent in your presence? Counsel for Plaintiffs: This is objected to as incompetent and irrelevant, and improper examination of this witness. The Court: Objection overruled. (Exception taken.) A. He said Glenn would be in, in a little while, and sign it, or something like that. Glenn was not there. Q. You may state whether or not, at the time that was executed by you, you had more than 200 head of cattle of that description. Coun...