Nat'l Live Stock Comm'n Co. v. Taliaferro, Case Number: 559 Ind Ter T

• Court: Supreme Court of Oklahoma
• Writing for the Court: HAYES, J.
• Citation: 20 Okla. 177,1908 OK 14,93 P. 983
• Parties: NATIONAL LIVE STOCK COMMISSION CO. et al. v. TALIAFERRO et al.
• Docket Number: Case Number: 559 Ind Ter T
• Decision Date: 04 February 1908

1908 OK 14
93 P. 983
20 Okla. 177

NATIONAL LIVE STOCK COMMISSION CO. et al.
v.
TALIAFERRO et al.

Case Number: 559 Ind Ter T

Supreme Court of Oklahoma

Decided: February 4, 1908

Syllabus

¶0 1. STATUTES--Adoption from Arkansas--Previous Construction. It will be presumed that Congress, in adopting the statutes of Arkansas for the Indian Territory, adopted them with the construction anti interpretation that had been placed on them by the Supreme Court of Arkansas prior to their adoption by Congress.

2. CHATTEL MORTGAGES--Failure to Extend--Conversion of Property--Action by Mortgagee Against Purchaser. An action for conversion under the statutes of Arkansas on mortgages, put in force in the Indian Territory, will not lie in favor of the mortgagee under a mortgage against the purchaser of the mortgaged property, where, the mortgage was filed, but not recorded, and where such action is not begun until after the lapse of one year from the filing of such mortgage unless such mortgage has been extended as required by statute, although the purchaser purchased the mortgaged property before the expiration of one year from the filing of the mortgage.

Error from the United States Court for the Southern District of the Indian Territory; before Hosea Townsend, Judge.
Action by the National Live Stock Commission Company and R. H. McNatt, trustee, against W. N. Taliaferro and D. B. Taliaferro. Judgment for defendants, and plaintiffs appeal, Affirmed.

This action was instituted on the l2th day of August, 1903, in the United States Court for the Southern District of the Indian Territory, at Tishomingo, by the National Livestock Commission Company and R. H. McNatt, trustee, against W. N. Taliaferro and D. B. Taliaferro. The portion of the plaintiffs' complaint that attempts to allege a cause of action against the defendants is as follows:

"For cause of action plaintiffs state that on April 26, 1900, one Sam Loughmiller, of Grayson county, Tex., for a valid consideration executed to R. H. McNatt, trustee for the National Live Stock Commission Co., a deed of trust covering 135 head of steer yearlings and 30 cows, branded L on left side, and located in Hume pasture, near Woodville, Ind. T., a certified copy of said deed of trust being attached hereto and made a part hereof, and marked 'Exhibit A.' That said deed of trust was properly indorsed and filed with the United States clerk at Ardmore, Ind. T., on May 5, 1900. That in the month of November or December, 1900, while said deed of trust was in full force and effect, and without the consent or knowledge of these plaintiffs, or either of them, the said Sam Loughmiller sold said cattle to the defendants herein W. N. Taliaferro and D. B. Taliaferro, who converted same to their own use and benefit; but plaintiff alleges that said mortgage was not extended by filing an extension affidavit as required by the statute, and that when this suit was filed the same was not properly recorded or filed for record. That by the terms of said deed of trust these plaintiffs had a special property interest in said cattle at time of said conversion by said defendants, and at time of said conversion said cattle were of the reasonable value of $ 1,500."

A copy of the deed of trust attached to said complaint fully confirms the allegations set out in plaintiffs' complaint as to the facts alleged therein relative to said deed of trust.

To plaintiffs' complaint defendants filed a demurrer, which was sustained by the court. Plaintiffs thereupon refused to plead further, and the court rendered judgment dismissing the action and taxing the costs against plaintiffs.

Whereupon the case was appealed by the plaintiffs to the United States Court of Appeals for the Indian Territory, where it was pending at the time of the admission of Oklahoma as a state, and comes to this court under the provisions of the enabling act.

Herbert, Walker & Cannon, for appellants.

Cruce, Cruce & Bleakmore and Henshaw & Faulkner, for appellees.

HAYES, J.

¶1 (after stating the facts as above). Appellants make two assignments of error, both of which go to the action of the court in sustaining appellees' to the complaint and in dismissing said cause from the docket of the trial court and taxing costs against the appellants. On May 2, 1890, Congress by an act extended over and put in force in the Indian Territory certain chapters of Mansfield's Digest of the Statutes of Arkansas, published in 1884. Among the chapters of said digest put in force in the Indian Territory was chapter 110, on "Mortgages," which contained, among other sections, the following sections:

"Sec. 4742. All mortgages, whether for real or personal estate, shall be proved or acknowledged in the same manner that deeds for the conveyance of real estate are now required by law to be proved or acknowledged; and when so proved or acknowledged shall be recorded if for lands, in the county or counties in which the lands lie, and, if for personal property, in the county in which the mortgagor resides.

"Sec. 4743. Every

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