Reynolds v. Morton

• Decision Date: 08 December 1913
• Docket Number: 741
• Citation: 136 P. 795,22 Wyo. 174
• Parties: REYNOLDS v. MORTON
• Court: Wyoming Supreme Court

136 P. 795

22 Wyo. 174

REYNOLDS v. MORTON

No. 741

Supreme Court of Wyoming

December 8, 1913

ERROR to the District Court, Carbon County; HON. CHARLES E CARPENTER, Judge.

The material facts are stated in the opinion.

Affirmed.

Allen G. Fisher, and William P. Rooney, for plaintiff in error.

The filing of a chattel mortgage does not constitute notice unless all the statutory steps have been complied with, and to entitle the mortgage to be recorded it must be acknowledged and certified as required by statute. (Butte Hdw. Co. v. Sullivan, 7 Mont. 307; Thompson v Scheid, 39 Minn. 102, and cases cited). The plaintiff did not offer or read the indorsement of filing upon his chattel mortgage, and this rendered his proof insufficient. (Bank v. Ratkey, 79 Ia. 215). The certificate of acknowledgment showed it to have been taken in Converse County before a resident notary public. The County Clerk has knowledge by law of the seal and official qualifications of all notaries within his county, and he must have known that the one taking the acknowledgment of plaintiff's mortgage was not a notary in that county. Hence his unauthorized act in filing it was not binding upon the defendant. The certificate to the copy offered in evidence did not show the seal of the County Clerk. It was therefore inadmissible. (Comp. Stat. 1910, Secs. 1147, 1248, 3729; Wickliffe v Hill, 3 Litt. (Ky.) 330; 17 Cyc. 339; 7 Ency. Ev. 975 976, 978). Courts will take notice only of what ought to be generally known within the limits of its own jurisdiction. (1 Greenleaf Ev. 11). A statute making competent certified copies of recorded papers applies only to papers legally on record. (Settegast v. Charpiot, (Tex. Civ. App.) 28 S.W. 580; Morrison v. Coad, 49 Ia. 571; Hammatt v. Emerson, 27 Me. 308; State ex rel. v. Cowhick, 9 Wyo. 93; Tripler v. Mayor, 125 N.Y. 617; Coxe v. Deringer, 78 Pa. St. 271; Fox v. Peninsular, &c., 92 Mich. 243; Prigg v. Lunsberg, 3 App. Cas. (D. C.) 30; Heelan v. Hoagland, 10 Neb. 514; Graham v. Hartnett, 10 Neb. 517; 10 Ency. Ev. 873-876, 722; Bank v. Bronson, 14 Mich. 361; Boswell v. Bank (Wyo.) 92 P. 628).

The court erred in sustaining the objection of plaintiff to the questions propounded on cross-examination to the plaintiff, while testifying in his own behalf, relative to his failure to take any steps for the foreclosure of his mortgage; on plaintiff's theory that the defendant's mortgage was a second mortgage. The defendant claimed his mortgage the prior lien, as this record shows it to be. But assuming it to be a second mortgage only, the defendant was entitled to show the plaintiff's laches in foreclosure, and his failure thereby to fix the amount of his lien and give the holder of the second mortgage opportunity to redeem or to purchase at foreclosure sale. Defendant was also entitled to show, by cross-examination of plaintiff, and his right as to this was denied, that some of the cattle covered by defendant's mortgage had been gathered by plaintiff and were sufficient in value, if promptly foreclosed, to satisfy plaintiff's lien. The court also erred in excluding the offered testimony of the defendant with reference to the actual knowledge of the plaintiff of the existence and bona fides of defendant's mortgage. (2 Cobbey Chat. Mort., Sec. 1038, and cases cited). Where a mortgage has not been refiled, a person taking a later mortgage with knowledge of the first, takes subject to it. (Thompson v. Van Vechten, 6 Bosw. 272; Keeler, 31 N. J. Eq., 181; Laubenheimer v. McDermott, 5 Mont. 512). The plaintiff's mortgage was given without any new consideration. The defendant's mortgage was in fact the prior lien. (Wright v. Larson, 51 Minn. 321, 38 Am. St. 504; Ransom v. Schmela, 13 Neb. 73; Marsden v. Cornell, 62 N.Y. 215; Corbin v. Kincaid, 33 Kan. 649; Frank v. Playter, 73 Mo. 672; Bank v. Sprague, 21 N. J. Eq. 530; Arlington &c. Co. v. Yates, 57 Neb. 286; Wetherell v. Spencer, 3 Mich. 123; Gregory v. Thomas, 20 Wend. (N. Y.) 17; Wells, Fargo & Co. v. Alturas, 6 Idaho, 506; Am. L. P. Co. v. Champion, 57 Kan. 352; Huber Mfg. Co. v. Sweney, 57 O. St. 169; Nickerson v. Merc. Co., 71 Minn. 230; Loan Co. v. Piano Co., 124 Ia. 150; Westinghouse &c. Co. v. Citizens, &c. Co., (Ky.) 68 S.W. 463; Aultman v. Young, (S. D.) 126 N.W. 645; Drug Co. v. Drug Co., (Wyo.) 113 P. 791). Defendant's mortgages were competent evidence to show his special interest in the property. (Scrafford v. Gibbons, 44 Kan. 533). A mortgage is security for the debt, not for the note which evidences the debt, and it remains a lien until the debt is satisfied; the true inquiry being, does the debt exist? (1 Cobbey Chat. Mort., Sec. 471; Curtis v. Wilcox, (Mich.) 51 N.W. 992; Austin v. Bailey, (Vt.) 24 A. 245). It was shown that possession had been given to, or taken by, the defendant below, before the plaintiff had sought possession. The court erred in excluding the defendant's mortgages, and in directing a verdict in favor of the plaintiff.

Norton & Hagens, for defendant in error.

The notary's certificate showing the acknowledgment of plaintiff's mortgage was proper and regular on its face. The venue is laid in Converse County and recites the person taking the acknowledgment to be a notary in and for said county, and, therefore, no defect appearing on the face of the certificate the instrument was valid and binding between the parties and entitled to record, and having been recorded it operated as constructive notice. (Boswell v. Bank, 16 Wyo. 161; Angier v. Schieffelin, 72 Pa. 106, 13 Am. Rep. 659). It is true that the name of the county shown on the seal of the notary impressed upon the certificate is a different one from that stated in the venue and in the body of the certificate. But the seal is no part of the certificate, and in any event would not put the County Clerk upon notice, since such discrepancy could in no wise affect the certificate; the statute providing that a notary's certificate shall not be held invalid or defective because his official seal contains different words from those required. (Comp. Stat. 1910, Sec. 3572). The defendant's mortgages were properly rejected. They were not admissible at the time and in the manner they were offered, for the defendant should not have offered to introduce them until after the plaintiff had rested his case; but even then they would be wholly incompetent, irrelevant and immaterial. The Clerk's certificate attached to the copy of plaintiff's mortgage which was introduced in evidence showed that it was a copy "together with all indorsements thereon", and such copy together with the indorsements were all introduced in evidence without objection thereto, except on the ground that the acknowledgment was defective. The objection, therefore, was insufficient to cover a defect in the Clerk's certificate. (9 Ency. Ev. 58, 71, 82; 2 Cyc. 677, 693, 696; Sherlock v. Leighton, 63 P. 934; Barrett v. Godshaw, 75 Ky. (Bush) 592; Gage v. Eddy, 186 Ill. 432, 57 N.E. 1030; Jochen v. Tibbells, (Mich.) 14 N.W. 690; Park v. Robinson, 91 N.W. 344; Falk v. Engr. Co., 54 F. 890; Lumber Co. v. Martin, (Okl.) 66 P. 328; Noonan v. Min. Co., 121 U.S. 393; Gregory v. Langdon, (Neb.) 7 N.W. 871; Ins. Co. v. Soule, (Mich.) 16 N.W. 662). The cases cited and many others clearly establish the rule with reference to the introduction of documentary evidence that unless the specific ground of an objection thereto is pointed out before a ruling thereon, the party objecting waives the right to question the ruling on such point. It is the duty of the party so objecting to call the court's attention to the specific defect relied upon, or he cannot raise the point in an appellate court. (Baker v. Baker, (Ill.) 42 N.E. 867).

It is contended on behalf of defendant below that the mortgage from Fowler to the defendant, although having expired in the year 1910 and not renewed by the required statutory affidavit was, nevertheless, kept alive by the taking of a new mortgage upon the property. The contention is unsound for these reasons: (a) The cattle described in the Fowler mortgage are not the same cattle described in the mortgage to plaintiff. (b) The plaintiff was a subsequent bona fide mortgagee, and as such was entitled to priority as against defendant's mortgages. (c) As between the parties to this suit their several mortgages were merely executory contracts and the plaintiff executed his contract by first taking possession of the property, and thereby became entitled to priority. (d) Defendant's second mortgage was taken subsequent to the plaintiff's, and by taking that mortgage the defendant discharged the first one. A subsequent bona fide mortgagee is one who becomes such after the date of the execution of the prior mortgage. (Day v. Munson, 14 O. St. 488; Briggs v. Nette, 3 N.W. 231; Bank v. Ludvigsen, 8 Wyo. 230; Babbitt v. Bank, 108 P. 1003; Brereton v. Bennett, 25 P. 310; Cassell v. Deisher, 89 P. 773; Live Stock Co. v. Talliaferro, (Okl.) 93 P. 983). To make a new chattel mortgage does not extend the lien of a former one, the statute having provided that the mortgagee may protect himself by filing an affidavit of renewal, exhibiting his interest in the manner provided. (McCrea v. Hopper, 55 N.Y.S. 136). An affidavit of renewal to continue a chattel mortgage is not sufficient if filed either before or after the time provided by law. (Cooper v. Koppes, (Ohio) 15 N.E. 662; Swiggitt v. Dodson, (Kan.) 17 P. 594; Jones on Chat. Mort. (3rd Ed.) Sec. 297). The fact that the plaintiff may have had actual notice of the mortgage given by Fowler to defendant when he took his mortgage is immaterial, but the offer made was insufficient to show any such knowledge for it did not correctly describe the Fowler mortgage, and the cattle covered by that mortgage are not the...