Woodbury Glass Company v. Beeson
| Decision Date | 02 June 1920 |
| Docket Number | 10,479 |
| Citation | 127 N.E. 573,73 Ind.App. 385 |
| Parties | WOODBURY GLASS COMPANY v. BEESON ET AL |
| Court | Indiana Appellate Court |
From Randolph Circuit Court; Theodore Shockney, Judge.
Action by Charles H. Beeson and others against Woodbury Glass Company. From a judgment for plaintiffs, the defendant appeals.
Affirmed.
A. L Bales, J. W. Macy and A. L. Nichols, for appellant.
W. G Parry and J. S. Engle, for appellees.
OPINION
On January 6, 1917, one Orland E. Way executed a mortgage covering both real estate and chattel property to appellees Beeson, Wysong, and G. W. Hiatt. On the same day, this mortgage was taken to the office of the recorder of Randolph county, Indiana, and delivered to and left with said recorder to be recorded, and a fee of one dollar was then and there tendered to and paid to the recorder for recording the same, but nothing was said to the recorder about the mortgage covering both real estate and personal property, and no direction was given the recorder to record said mortgage in the chattel mortgage record, or to index the same in such record, or to make any notation on the real estate mortgage index that the mortgage covered any chattel property. Said mortgage was then and there received by said recorder and in due time duly recorded in mortgage record No. 56, of real estate mortgages, at page 548 of said record.
Thereafter, on September 22, 1917, appellant, Woodbury Glass Company, without any actual knowledge that the same was included in said mortgage aforesaid, purchased of said Way one concrete mixer, paying him the sum of $ 350 therefor, and at once took possession of said machine, and retained possession thereof, using the same as its own property, until after this suit was brought.
By this suit the appellees, Beeson, Wysong, and G. W. Hiatt, sought to foreclose their said mortgage upon the personal property therein described. Appellant filed its answer, setting up the foregoing facts, with others not necessary to be stated, in bar of said action. To this answer a demurrer was sustained, and this ruling presents the only question necessary to be considered on this appeal.
The various sections of our statute which have any bearing on the question at issue are as follows:
Section 9492 Burns 1914, § 5930 R. S. 1881, provides: "Such recorder, at the expense of the county, shall procure sufficiently large and well-bound books, of good materials, in which he shall record all deeds, bonds, field-notes, and other instruments of writing delivered to him, which by law he is bound to record; and he shall also keep a book in which he shall enter, upon the reception of any such instrument, the date thereof, names of grantors and grantees, description of the premises affected by such instrument, and the fees for the recording thereof, and shall deliver a receipt to the person bringing such instrument, if demanded, containing the matter embraced in such entry."
Section 9495 Burns 1914, § 5931 R. S. 1881, provides: "Such recorder shall record all instruments of writing, proper to be recorded, in the order of priority of time at which each was delivered at his office for record, and shall also make a complete index of all such instruments so recorded, for each volume thereof in the manner following: The name of each grantor, promisor or covenantor, in alphabetical order, referring to the proper grantee, promisee or covenantee; and also the names of each grantee, promisee, or covenantee, in the same order, referring to the proper grantor, promisor or covenantor."
Section 9497 Burns 1914, § 5933 R. S. 1881, provides: "Such recorder shall record deeds, mortgages, and indentures of apprentices, in separate books to be procured for that purpose, as provided for in section 2 of this act." § 9492, supra.
The above are sections 2, 3, and 4 of the acts of 1852, which went into force and effect May 6, 1853.
Section 7472 Burns 1914, Acts 1907 p. 240, provides: "No assignment of goods by way of mortgage shall be...
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