Lesser-Goldman Cotton Company v. Hembree
| Decision Date | 03 March 1924 |
| Docket Number | 203 |
| Citation | 259 S.W. 5,163 Ark. 88 |
| Parties | LESSER-GOLDMAN COTTON COMPANY v. HEMBREE |
| Court | Arkansas Supreme Court |
Appeal from Conway Chancery Court; W. E. Atkinson, Chancellor affirmed.
Decree affirmed.
Strait & Strait, for appellants.
1. The filing of the mortgage did not constitute constructive notice to appellant, the purchaser of the cotton. The mere printing of the name of the mortgagee under the indorsement "This instrument is to be filed but not recorded" was not a signature "by the mortgagee, his agent or attorney," within the meaning of the statute. C. & M Digest, § 7384; 130 Ark. 290; 37 Ark. 507; 43 Ark. 144; 52 Ark. 164; 83 Ark. 109; 121 Ark. 346; 101 Ark. 68.
2. The mortgage does not describe with sufficient certainty the crop of cotton in question to enable a person to identify the cotton. There is no such farm or township in Conway County as the farm and township mentioned in the mortgage. 41 Ark. 495; 108 Ark. 162; 134 Ark. 241; 54 Ark. 91.
Calvin Sellers, for appellee.
1. A substantial compliance with the statute regarding the filing of a mortgage is all that is required, and it makes no difference whether the mortgagee causes his name to be signed to the indorsement in writing or in print. 130 Ark. 289; 40 Ark. 431; 60 Ark. 112; Words & Phrases, 584; 103 N.W. 327; 136 S.W. 217; 101 Ark. 68; Central Law Journal, vol. 74, p 339; 103 Ind. 96; 47 A. 675; 84 P. 1002; 27 N.W. 579.
2. It is not necessary that the mortgaged property should be so described as to be capable of identification by the written recital, or by the name used to designate it in the mortgage, but any description which will enable third parties to identify the property is sufficient. 191 S.W. 953; 51 Ark. 410; 52 Ark. 371; 109 Ark. 552.
This action was instituted by the appellees against the appellants to foreclose a chattel mortgage on certain personal property of the appellant, J. W. Kennedy, and to recover the value of certain cotton bought by the appellant, Lesser-Goldman Cotton Company (hereafter called company), from the appellant, Kennedy, grown in the year 1920, on which the appellees claim a mortgage lien. At the time of the execution of the mortgage in question appellee, A. V. Hembree, was in the mercantile business in Morrilton, Arkansas, under the firm name of A. V. Hembree & Son. Later he was adjudged a bankrupt, and his assets sold. He and the other appellees bought in the notes and accounts at the bankrupt sale of A. V. Hembree & Son. Upon the trial of the cause a decree was rendered in favor of the appellees against the appellants, from which is this appeal.
1. The company contends that the mortgage executed by Kennedy to Hembree, if otherwise valid, was never filed as provided by law, and did not become constructive notice to third parties because the name A. V. Hembree & Son was printed on the back of the mortgage, under the indorsement;" This instrument is to be filed but not recorded;" that the printing of the name A. V. Hembree & Son was not a signature within the meaning of § 7384, Crawford & Moses' Digest. This contention of appellant cannot be sustained, for the reasons set forth in Leach v. Bald Knob State Bank, post p. 91, which cause rules this on the point under consideration.
2. Both appellants Kennedy and the company deny that Kennedy mortgaged his cotton crop, and contend that the mortgage upon its face does not sufficiently describe the cotton crop to charge a purchaser thereof with notice. The issue as to whether or not appellant Kennedy intended, and attempted, to mortgage his cotton crop grown in the year 1920 to A. V. Hembree & Son is purely one of fact, and it could serve no useful purpose as a precedent to set out in detail and argue the testimony upon which the trial court found that Kennedy did execute a mortgage on his crop for the year 1920 to Hembree & Son. Suffice it to say that we have considered the testimony, and are convinced that the finding of the...
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