Hardwick v. Atkinson

• Decision Date: 24 August 1899
• Citation: 1899 OK 75,58 P. 747,8 Okla. 608
• Parties: MARY C. HARDWICK et al. v. C. T. ATKINSON
• Court: Oklahoma Supreme Court

1899 OK 75

58 P. 747

8 Okla. 608

MARY C. HARDWICK et al. v. C. T. ATKINSON

Supreme Court of Oklahoma

Decided: August 24, 1899

SYLLABUS

¶0 1. CHATTEL MORTGAGE--Second Lien--Rights of Parties. A second mortgagee who accepts a second chattel mortgage which refers in express terms to the first chattel mortgage, and covers the same property, accepts the same with full knowledge of the rights of the first mortgagee. He is not a bona fide purchaser or incumbrancer without notice, and cannot be heard to question the sufficiency of the description in the first mortgage.

2. PROMISSORY NOTE--Pleading--Proof. Where plaintiff founds his claim to the property in controversy upon a certain note and chattel mortgage, and gives a copy of said note and chattel mortgage in his original pleadings, and makes it a part thereof, and the defendant does not deny the execution of such note and mortgage by affidavit, it is not necessary for the plaintiff to prove the execution thereof or the amount due.

3. NEW TRIAL--Motion--Error. Alleged error occurring in the trial, not raised in the trial court or set forth in the motion for a new trial, will not be considered for the first time in this court.

STATEMENT OF THE CASE.

Action by C. T. Atkinson against Mary C. Hardwick and W. P. Hardwick. This case was originally brought to recover possession of certain horses, hogs, and farm implements upon which plaintiff claimed a lien and a special ownership by virtue of a certain note and chattel mortgage set forth in his petition, to which petition defendants filed a general denial. The facts are that on December 5, 1895, one Frank Lessert gave his note to the plaintiff, C. T. Atkinson, for the sum of $ 471.98, and at the same time executed a chattel mortgage to secure the same. Afterwards, on the 2d day of January, 1897, the said Lessert executed and delivered to Mary C. Hardwick, one of the defendants, a chattel mortgage for $ 248.50 to secure a certain judgment which the said Mary C. Hardwick held against him; said mortgage being upon the same property as the one to Atkinson, and containing this clause, to wit: "And without incumbrance, except a mortgage to C. T. Atkinson." Hardwick afterwards took possession of the property under her mortgage, and Atkinson began proceedings in replevin. Case was tried by the court without a jury, and judgment rendered in favor of the plaintiff for the sum of $ 244.22 and costs. On the hearing on motion for new trial judgment was reduced $ 20, and judgment rendered by the court on the balance of said judgment and costs. Defendants excepted, and bring this case here for review. Affirmed.

Error from the District Court of Kay County; before A. G. C. Bierer, District Judge.

Ed. L. Peckham, for plaintiffs in error.

J. E. Torrance, for defendant in error.

IRWIN, J.:

¶1 Plaintiffs in error urge as a reason for reversal that the mortgage of defendant in error is bad, for insufficiency in the description of the property. The description of the property in said mortgage in as follows: "One chestnut sorrel gelding; one bay gelding; one double buggy and harness; 35 head of mares and colts; 35 head of hogs; two cultivators; two stirring plows; one mower and rake; 300 bushels of corn. Said property is now in the Kaw reservation, in the county of Kay, Oklahoma Territory."

¶2 Mr. Jones, in his work on Chattel Mortgages (2d Ed., sec. 53,) says: "It is not necessary that the property should be so described as to be capable of being identified by written recitals." And in section 54 of the same work this language occurs: "A description which would enable third persons, aided by inquiries which the instrument itself suggests, to identify the property, is sufficient." We are also aware that the courts of the different states and territories have usually put a very liberal construction on the description in chattel mortgages. The rule of construction is, and should be, different, where it is between the holder of a chattel mortgage and an attaching creditor, or a bona fide purchaser or incumbrancer without notice, than where the question is between the original makers of the instrument; and a description which might be insufficient in the former case would be held good in the latter. And while the description...