Williams v. First Nat. Bank

• Decision Date: 11 December 1906
• Parties: WILLIAMS et al. v. FIRST NAT. BANK OF ONTARIO et al.
• Court: Oregon Supreme Court

87 P. 890

48 Or. 571

WILLIAMS et al. v. FIRST NAT. BANK OF ONTARIO et al.

Supreme Court of Oregon

December 11, 1906

Appeal from Circuit Court, Grant County; Geo. E. Davis, Judge.

Action by S.S. Williams and another against the First National Bank of Ontario and others. From a judgment in favor of plaintiffs, defendants appeal. Affirmed.

This is an action to recover possession of 2,316 sheep mortgaged to plaintiffs by L.S. Wickersham, the owner thereof, who afterwards mortgaged them to the defendant bank, which claims a right to their possession under its mortgage. The case was tried by the court without the intervention of a jury, upon an agreed statement of facts, from which it appears that on August 2, 1902, Wickersham gave plaintiffs a mortgage upon the sheep in controversy to secure the payment of $4,125 part of the purchase price thereof, evidenced by two notes one for $500 due July 15, 1903, and the other for $3,625 due September 15, 1904, with interest at 10 per cent. per annum from September 15, 1902, payable annually; which mortgage was properly executed and witnessed but not acknowledged, and was, on October 1, 1902, recorded in Malheur county, and on July 8, 1904, in Grant county; that on July 8, 1903 Wickersham gave the defendant First National Bank of Ontario a mortgage on the same sheep to secure the payment of a promissory note for $500 that day executed by him to the bank, and due in six months after date, which mortgage was properly executed, witnessed, and acknowledged, and on the next day recorded in Malheur county, and afterwards, on the 29th day of June, 1904, recorded in Grant county, to which latter county the sheep covered by said mortgages had been removed on the 15th day of June, 1904. In July, 1904, the defendant bank obtained possession of all the sheep covered by its mortgage by an action of claim and delivery commenced by it against the mortgagor Wickersham, and thereafter, on July 13, 1904, the plaintiffs commenced this action of claim and delivery for the sheep against the bank and other defendants herein, but, according to the stipulated facts the other defendants have no interest in this action. It is further agreed that on the _______ day of June, 1903, prior to the execution and delivery by Wickersham of the mortgage to the defendant bank, one of the plaintiffs, I.S. Goodwin went to the bank and left with E.H. Test, its cashier, for collection, the $500 note secured by plaintiffs' mortgage, "and then and there informed the said cashier that he, the said Goodwin, and S.S. Williams had a chattel mortgage upon the sheep owned by the said Wickersham and which are described in the mortgages of both plaintiffs and defendant bank." It is also stipulated that default had been made in the conditions of both mortgages; and that Test was cashier of the bank when its mortgage was taken, and witnessed the same. There are other facts stipulated, but, not deeming them necessary to the determination of the questions involved in this suit, we refrain from reciting them. The court entered judgment in favor of the plaintiffs for the possession of the mortgaged property and costs, it appearing from the record that possession of the sheep had been obtained by the plaintiffs theretofore by affidavit and an undertaking as provided by the Code in actions for claim and delivery. From this judgment, the defendant bank appealed.

Errett Hicks, for appellants.

W.R. King and W.H. Brooke, for respondents.

HAILEY J. (after stating the facts).

The defendant urges two questions only: "First, was there actual notice to the bank of the existence of plaintiffs' mortgage at the time of taking its own mortgage? and, second, if there was such notice, was it sufficient to cure the defect in the execution of plaintiff's mortgage," caused by the want of an acknowledgment thereto? As stated in the language of defendant's brief, "the notice to the cashier was given when one of the plaintiffs presented for collection the $500 note described in plaintiffs' mortgage and told the cashier the plaintiffs had a mortgage on the sheep of Wickersham, the maker of the note," and it is admitted, in the agreed statement of facts, that the sheep referred to were those covered by the two mortgages. Defendant claims that this notice is not sufficient, in that "it does not appear to what this notice extended, nor does it appear that the other note described in the mortgage was mentioned." How actual notice of the mortgage could have been given more directly than by these admitted facts, we fail to see, unless by producing and exhibiting the mortgage itself or reciting its contents. The notice clearly extended to the sheep upon which defendant afterwards took its mortgage, and had reference to the mortgage given thereon to plaintiffs, in which both notes secured thereby were mentioned. The cashier was told by one of the mortgagees of its existence, and could have learned from the same source its full terms, and such notice was sufficient. Bohlman v. Coffin and Carter, 4 Or. 318; Musgrove v. Bonser, 5 Or. 317, 20 Am.Rep. 737; Manaudas v. Mann, 14 Or. 452, 13 P. 449; Raymond v. Flavel, 27 Or. 241, 40 P. 158; Crossen v. Oliver, 37 Or. 521, 61 P. 885. No question is raised that notice to the cashier was not notice to the bank in this case.

Section 5630, B. & C. Comp., provides: "Any mortgage, deed of trust, conveyance, or other instrument of writing intended to operate as a mortgage of personal property alone, or with real property, shall be executed, witnessed, and...