Nat'l Live Stock Comm'n Co. v. Taliaferro

• Decision Date: 04 February 1908
• Docket Number: Case Number: 559 Ind Ter T
• Parties: NATIONAL LIVE STOCK COMMISSION CO. et al. v. TALIAFERRO et al.
• Court: Oklahoma Supreme Court

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 mortgage, whether for real or personal property, shall be a lien on the mortgaged property from the time the same is filed in the recorder's office for record, and not before; which filing shall be notice to all persons of the existence of such mortgage."

"Sec. 4750. Whenever any mortgage or conveyance, intended to operate as a mortgage of personal property, or any deed of trust upon personal property, shall be filed with any recorder in this state upon which is indorsed the following words: 'This instrument is to be filed, but not recorded'--and which indorsement is signed by the mortgagee, his agent or attorney, the said instrument, when so received, shall be marked 'Filed' by the recorder, with the time of filing, upon the back of such instrument; and he shall file the same in his office and it shall be a lien on the property therein described from the time of filing, and the same shall be kept there for the inspection of all persons interested; and said instrument shall be thenceforth notice to all the world of the contents thereof without further record, except as hereinafter provided.

"Sec. 4751. Every mortgage so indorsed and filed shall be void as against the creditors of the person making the same, or against subsequent purchasers or mortgagees in good faith, after the expiration of one year after the filing thereof, unless within thirty days next preceding the expiration of one year from such filing, and each year thereafter, the mortgagee, his agent or attorney, shall make an affidavit exhibiting the interest of the mortgagee at the time last aforesaid claimed by virtue of such mortgage, and, if said mortgage is to secure the payment of money the amount yet due and unpaid, such affidavit shall be attached to and field with the instrument or copy on file to which it relates." (Ind. T. Ann St. 1899, §§ 3053, 3054, 3061, 3062).

¶2 On February 3, 1897 (29 Star. 510, c. 136), an act of Congress, amending section 4742 of Mansfield's Digest of the Statutes of Arkansas [Ind. T. Ann. St. 1899, §§ 3053], above set out, was approved, which amendment, omitting the caption, was as follows:

"Provided, that if the mortgagor is a nonresident of the Indian Territory, the mortgage shall be recorded in the judicial district in which the property is situated at the time the mortgage is executed. All mortgages of personal property in the Indian Territory heretofore executed and recorded in the judicial district thereof in which the property was situated at the time they were executed are hereby validated."

¶3 In the deed of trust attached to the complaint of plaintiffs as an exhibit it is stated that Sam Loughmiller, the mortgagor, was at the time of the execution of the same a resident of Grayson county, Texas, but that the property mortgaged was located in the Chickasaw Nation, Indian Territory, which was a part of the Southern District of the Indian Territory. The proper place, then, for recording said deed of trust was in the office of the clerk of the United States Court at Ardmore, Ind. T., where it was filed, but not recorded, on the 5th day of May, 1900. Therefore, under the pleadings in the trial court and the assignments of error in this court, there is but one question presented to this court for its consideration and answer to-wit: Could a trustee, joined by the beneficiary, under a deed of trust conveying personal property which had been filed as by law provided, maintain an action for conversion against one who had purchased the mortgaged property prior to the expiration of 12 months from date of the filing of the deed of trust, when no affidavit for a renewal or extension of said deed of...