Lundburg v. Nw. Elevator Co.

• Decision Date: 18 November 1889
• Citation: 42 Minn. 37,43 N.W. 685
• Parties: LUNDBURG v NORTHWESTERN ELEVATOR CO.
• Court: Minnesota Supreme Court

42 Minn. 37

43 N.W. 685

LUNDBURGvNORTHWESTERN ELEVATOR CO.

Supreme Court of Minnesota.

Nov. 18, 1889.

(Syllabus by the Court.)

1. Under Gen. St. 1878, c. 39, §§ 1-3, where a mortgagor of chattels resides in one town and the property mortgaged is situated in another, the mortgage must, as to subsequent bona fide purchasers, be duly filed in both towns.

2. Where, by the mutual agreement of debtor and creditor, a book-account is put into a note, payable at a future day, the transaction is prima facie evidence that the remedy upon the debt is thereby suspended until the maturity of the note, and the extension of credit is a new and adequate consideration for the note and a mortgage given to secure it.

3. Testimony tending to show that a witness not a party to the suit has made extrajudicial admissions to a third person in opposition to his evidence as a witness on the stand is competent for impeachment, but is not to be treated as affirmative proof in the case of the truth of the statements involved in such alleged admissions.

4. An agent lawfully in charge of the business of a warehouse in which goods, the title to which is in dispute, are deposited is the proper party upon whom to make demand for the delivery thereof by the person claiming title thereto.

5. One to whom a note and accompanying mortgage are given may enforce the same in his own name, though a third person has an interest in the debt.

Appeal from district court, Grant county BROWN, Judge.

Spooner, Spooner & Stevens, for appellant.

Hartson F. Woodard, for respondent.

VANDERBURGH, J.

The controversy arises over the title and right to the possession of a quantity of wheat, of which the defendant is the bailee. The wheat was raised by one Thoms, on land belonging to him situated in the town of St. Olaf, in the county of Otter Tail, but whose place of residence was at the village of Ashby, in the county of Grant, at the time of the execution of the mortgages in question here. Thoms, being indebted to William Deering, did, in the month of February, 1887, execute to him a chattel mortgage to secure the same upon the crop of wheat to be sown, grown, and raised upon the land referred to, in the year 1887, which mortgage was duly filed in the office of the town-clerk of St. Olaf, but a copy of which was never filed with the proper officer in the village of Ashby. Subsequently, on the 25th day of April, 1887, Thoms executed to plaintiff a chattel mortgage upon the same crop. The crop was raised, and the plaintiff claims the prior right thereto, under his mortgage, on the ground that he took the same in good faith, and without notice, actual or constructive, of the mortgage first named.

1. Gen. St. c. 39, § 2, (Amend. Laws 1883, c. 38,) provides that such instrument shall be filed in the town, city, or village where the property mortgaged is situated at the time of the execution of the mortgage, and also requires a copy thereof to be filed where the mortgagor resides. The defendant contends that it was enough in this instance that the mortgage was filed in St. Olaf, and that, under the language of section 1, it is sufficient if the mortgage or a copy is filed in either place. This is obviously too narrow a construction. The purpose of the statute, sections 1, 2, and 3 being considered together, is for the better protection of innocent purchasers or subsequent mortgagees in good faith, by requiring the mortgage and a copy to be filed as provided. The plaintiff, who also resided at Ashby, was not bound to search in both places, and the record in St. Olaf was not alone constructive notice to him.

2. The mortgage to plaintiff was given to secure a note made to him by defendant for the sum of $1,043, payable October 1, 1887. The consideration therefor was an account for lumber...