National Bank of Commerce v. Jones

• Decision Date: 25 June 1907
• Citation: 91 P. 191,18 Okla. 555,1907 OK 69
• Parties: NATIONAL BANK OF COMMERCE v. JONES.
• Court: Oklahoma Supreme Court

91 P. 191

18 Okla. 555, 1907 OK 69

NATIONAL BANK OF COMMERCE v. JONES.

Supreme Court of Oklahoma

June 25, 1907

Syllabus by the Court.

Where the owner of chattels covered by a valid recorded mortgage removes the chattels without the knowledge or consent of the mortgagee to another county, it is not necessary for the mortgagee, in order to preserve the lien, to file the mortgage or a copy thereof for registry in the county to which the property is removed.

[Ed Note.-For cases in point, see Cent. Dig. vol. 9, Chattel Mortgages, § 166.]

The lien of a prior valid recorded chattel mortgage will take precedence over the subsequently acquired lien of a livery stable keeper or agister upon animals placed in his charge unless such animals were delivered to such lienholder to be kept and cared for by him with the consent of the mortgagee.

[Ed Note.-For cases in point, see Cent. Dig. vol. 9, Chattel Mortgages, § 235.]

An act of the Legislature, which postpones an existing valid mortgage lien and makes a subsequently created lien superior to the mortgage lien, is a law impairing vested property rights and impairing the obligations of a contract, and is void for conflict with the Constitution of the United States.

[Ed Note.-For cases in point, see Cent. Dig. vol. 10, Constitutional Law, §§ 181, 494.]

Error from District Court, Pawnee County; before Justice Bayard T. Hainer.

Action by the National Bank of Commerce against Ben Jones. Judgment for defendant, and plaintiff brings error. Reversed.

Wrightsman & Fulton and James B. Diggs, for plaintiff in error.

BURFORD C.J.

One I. S. Jones was a resident of Payne county, Okl., and there owned and kept one gray horse, valued at $60. On December 6, 1900, he executed to the National Bank of Commerce at Stillwater a chattel mortgage upon said horse to secure the payment of the sum of $59.50, due September 6, 1901, and bearing 12 per cent. interest after maturity. This mortgage was filed for record in the office of the register of deeds of Payne county on the same day it was executed. On October 6, 1901, the horse was left in the possession of the defendant Ben Jones, at Ralston, in Pawnee county, Okl., without the knowledge or consent of the mortgagee. Ben Jones was the keeper of a feed barn, and kept and fed the horse until the commencement of this action, at which time there was due him for feed and care of the horse, as found by the court, the sum of $25. The mortgagee demanded possession of the horse in December, 1901, and Jones refused to deliver possession until the feed bill was paid. The mortgagee refused to pay this bill, and on December 10, 1901, began this action in replevin before the probate court of Pawnee county. The horse was taken on the writ of replevin and delivered to the plaintiff, who retains possession. On the trial in the probate court it was held that the mortgagee could not recover, and the horse was ordered returned to the defendant. Appeal was taken to the district court of Pawnee county, and the cause there tried to the court, and judgment rendered sustaining the lien of the defendant for feed and care for the sum of $25, which the plaintiff was ordered to pay, or, on default in payment, to return the horse. This judgment was rendered upon the express holding by the trial court that the lien for feed and care was superior to the mortgage lien. The bank, the mortgagee, brings the case here for review, and the sole question for determination is: Which is the superior lien, that of the mortgage to the bank, or that for feed and care claimed by the liveryman?

It is said in the brief that the trial court held that the bank had lost its lien by a failure to have the mortgage filed for record in the office of the register of deeds of Pawnee county after the horse was removed from Payne county. Such is not the law. When the owner of the horse, who resided and kept the horse in Payne county, executed a mortgage upon the horse, and it was duly filed for record in such county, the mortgage lien became effective against all persons who subsequently dealt with the property, and a removal of the property by the mortgagor without the consent or connivance of the mortgagee would not affect the validity of the mortgage lien. It is said in Jones on Chattel Mortgages, § 260: "The removal of a mortgagor from the town or county in which he resided when the mortgage was executed, and where it was duly recorded, and the taking of the mortgaged property with him, does not invalidate the record of the mortgage,...