Yund v. First National Bank of Shawnee, Oklahoma

• Decision Date: 28 August 1905
• Citation: 82 P. 6,14 Wyo. 81
• Parties: YUND v. FIRST NATIONAL BANK OF SHAWNEE, OKLAHOMA
• Court: Wyoming Supreme Court

82 P. 6

14 Wyo. 81

YUND v. FIRST NATIONAL BANK OF SHAWNEE, OKLAHOMA

Supreme Court of Wyoming

August 28, 1905

ERROR to the District Court, Albany County, HON. CHARLES W. BRAMEL Judge.

Replevin. The suit was brought by the First National Bank of Shawnee Oklahoma, against Charles Yund, to recover possession of certain personal property held by the defendant as sheriff under writs of attachment, and claimed by the plaintiff under certain chattel mortgages. The facts are stated in the opinion. From a judgment in favor of the plaintiff the defendant brought error.

Reversed and remanded.

Burke &amp Clark and N. E. Corthell, for plaintiff in error.

If it be assumed that a chattel mortgage given and filed in a foreign state pursuant to its laws upon property within its jurisdiction becomes and remains a lien upon such property notwithstanding its subsequent removal into this state, without any record here, the facts of the case at bar are not sufficient to authorize recovery by the defendant in error, plaintiff below, under either of its alleged mortgages. Under the decisions in Oklahoma, where the mortgages in question were executed, such instruments are required to be filed in the county where the property is situated at the time of the execution of the mortgage. The two acts of executing and filing the mortgage are everywhere necessary to its validity as against third parties. Both of such acts, therefore, must be performed at a time when the property is so situated as to be within the jurisdiction of the state. And the rule is well settled, as we understand, that a mortgage upon personal property must be both given and filed at a time when the property is within the territorial jurisdiction of the state. The statute requiring a chattel mortgage to be recorded in the county where the property is situated refers to the date of execution, and means that the record must be made where the property then is, rather than where it may be when the record is made. (Bank v. Weed, 89 Mich. 357; Stirk v. Hamilton, 83 Me. 524.) For a still stronger reason, it is held that a mortgage given and recorded in one state upon property which is, at the date of execution, situated in another state does not impose a lien as against third parties. (Golden v. Cockril, 1 Kan. 259; In re Soldiers & Co., 22 F. C., 781, No. 13163; Iron Works Co. v. Warren, 76 Ind. 512; Hardaway v. Semmes, 38 Ala. 657; Clark v. Tarbell, 58 N. H., 88; Lathe v. Schoff, 60 N. H., 34; Pleasanton v. Johnson, 91 Md. , 673; Mach. Co. v. Kennedy, 114 Iowa 444; Whitman v. Conner, 40 N. Y. Super. Ct., 339; Green v. Van Buskirk, 7 Wall., 139; Hervy v. Loco Works, 93 U.S. 669; Harrison v. Sterry, 5 Cranch, 289.) And this doctrine is fully endorsed by the Supreme Court of Oklahoma in construing the very statutes under consideration in this case. (Bank v. Evans, &c., Co., 9 Okla. 353.)

The case above cited from Oklahoma clearly applies to the third mortgage and would operate to reverse the judgment as to that mortgage. We think the situation of the bank as to its first mortgage is no better. That mortgage, not having been filed at the time the property was removed from Oklahoma, was not then a lien upon it as to creditors, and clearly could not become so afterward by a subsequent filing of the mortgage in that territory. After the removal of the property from the territory the Oklahoma law could no longer operate upon it. (Carroll v. Nisbet, 9 S.D. 497; Gall v. Dibrell, 10 Yerg., 176.) We insist, however, as to the first and third mortgages that the plaintiff's case rested upon testimony which is thoroughly discredited, not only because it is in itself evasive, contradictory, improper and generally unsatisfactory, but by direct, unimpeached and convincing evidence on the part of the defendant; so that it is impossible to claim that there is sufficient evidence to sustain the plaintiff's alleged right under any view of the law. The rule that the finding of fact upon conflicting testimony will not be reversed unless the same is clearly against the weight of evidence is based upon sound reason and has its natural and necessary limitations. In the case at bar all the evidence for the plaintiff below was presented by deposition, and this court is as able to weigh it as the trial court, and has the same opportunity. The reason of the rule above stated, therefore, is not applicable to the facts here and the case should stand in this court upon the evidence as though it were a case of original jurisdiction. (Lavelle v. Corrignio, 86 Hun, 135; Thorn v. Frazer, 60 Tex. 259; Butler v. Hannah, 103 Ala. 481; Ritmaster v. Brisbane, 19 Colo. 371; Baker v. Rockabrand, 118 Ill. 365; Durham v. Carbon Coal & Min. Co., 22 Kan. 243; Martin v. Brown, 4 Minn. 201.) The plaintiff had the burden of proof. Much of the evidence required by the nature of the case was peculiarly in its possession or within its reach. If its claims were true, there were many witnesses and much proof available. Upon all material or important questions it produced the testimony of only two persons, and these, persons who were largely interested. Both these witnesses are self-contradictory in their testimony, which, being written out and signed by them, might be supposed to be as nearly correct as they wished and were able to make it. It cannot be fairly said to be reliable evidence. A verdict not supported by reliable evidence will be set aside. (Witters v. Kinser, 53 Ill.App. 37; Warren v. Gilman, 15 Me. 70.) Opposed to this evidence, on the other hand, was the testimony of two disinterested witnesses produced by the defendant.

In case of a dispute between the mortgagee in a chattel mortgage and a third person, the description of the property must be sufficient to enable a third person, either by means of the mortgage alone or by means of such inquiry and references as the mortgage itself suggests, to distinguish the property intended by the description. The descriptions in these mortgages are defective in varying degrees in respect to this requirement. They do not in any case give the location of the property, nor state in whose possession it is, nor whether it was all the property of the same kind that the mortgagor owned. And the description applies to a large number of common articles which cannot be distinguished without some special method suggested by the mortgage. The witnesses identified the property, not by means of the mortgage, but because they had seen it before, and thus assumed that it was the property described. Such a description is insufficient to bind the property in the hands of third persons. (6 Cyc., 1031, 1025; 5 Ency. L., 956, 962; Jones on Chattel Mortgages, 55; Hayes v. Wilcox, 61 Iowa 1732; Ormsby v. Nolan, 69 Iowa 130; Warner v. Wilson, 73 Iowa 719; Plano Mfg. Co. v. Griffith, 75 Iowa 102; Barrett v. Fish, 76 Iowa 553; Kelly v. Reid, 57 Miss. 89; Nicholson v. Karp, 58 Miss. 34; Leffell v. Miller, 75 Miss. 324; Tabor v. Sampson, 4 Colo. 426; Hutton v. Arnett, 51 Ill. 198; Tindall v. Wasson, 74 Ind. 495; Colden v. Cockril, 1 Kan. 259; Bozeman v. Fields, 44 Mo. App., 432; Huse v. Estobrooks, 67 W.Va. 223; F. N. Bk. of Wabena v. Hendrickson, 67 Minn. 293; Hardaway v. Jones (Va.), 41 S.E. 957; Solinsky v. O'Connor (Tex.), 54 S.W. 935; Holman v. Whittaker, 119 N. C., 113; Dodds v. Neal, 41 Ark. 70; Stonebreaker v. Ford, 81 Mo. 532; Bank v. Metcalf, 29 Mo. App., 384; Crosswell v. Allis, 25 Conn. 301; Meredith v. Kunze, 78 Iowa 111; Sonders v. Voorhees, 36 Kan. 138; Richardson v. Alpena Lbr. Co., 40 Mich. 203; Bank v. Johnson (Neb.), 94 N.W. 837; Union State Bk. v. Hutton, 61 Neb. 571; Leighton v. Stuart, 19 Neb. 546; Price v. McComas, 21 Neb. 195; Grimes v. Donnell, 23 Neb. 197; Park v. Chese, 62 Vt. 206; Jacobson v. Christenson, 18 Utah 149; Mach. Co. v. Elevator Co., 48 Minn. 404.)

The mortgages in question depend for their force against third parties wholly upon the statute under which they are executed, and it must be shown by pleading and proof that they were made in the manner and with all the formalities required by the statute. (Gould on Pleading, 180; Morehouse v. Cotheal, 21 N.J.L. 480.) Copies of the original filed mortgages are in evidence. The subscribing witnesses were not produced, but the cashier of the plaintiff was permitted over objection to testify that he saw the mortgage signed by the maker and the witnesses in each case and as to the second mortgage that he saw the witnesses sign in the presence of the maker; and as to the third mortgage that he saw one of the witnesses sign at the time the maker signed it. The testimony was neither competent nor sufficient to prove the execution of the mortgages, which, under the law of Oklahoma, must to be valid have been signed by the mortgagor in the presence of two persons who must have also signed the same as witnesses thereto. The rule requiring attesting witnesses to be called rests upon most substantial and important grounds. (Greenleaf on Ev., 569; 2 Jones on Ev., 539; Reynolds Theory of Evidence, 62; Clark v. Courtney, 30 U.S. 319-343; Warner v. R. R. Co., 31 Ohio St. 265; Stevens v. Irwin, 12 Cal. 306; Jackson v. Root, 18 Johns., 60; Willoughby v. Carleton, 9 Johns., 136; McPherson v. Rathbun, 11 Wend., 97; Jackson v. Goger, 5 Cow., 383; Wilson v. Betts, 4 Den., 201, 209; Williams v. Davis, 2 N.J.L. 259; Corlis v. Van Note, 16 N.J.L. 324; Hudson v. Puett, 86 Ga. 341; Ry. Co. v. McRae, 82 Tex. 614; R. Co. v. Jones, 92 Ala. 218; McGowan v. Reid, 27 S. C., 262.) This primary and best evidence may be dispensed with in case the testimony of the subscribing witnesses cannot be had, as when they are dead, or beyond the jurisdiction, or cannot be found, or are insane or incompetent, etc.; but in such case the party offering secondary evidence must show that he has...