First National Bank, Cortez v. First Interstate Bank, Riverton, N.A.

758 P.2d 1026, 1988 WL 60656

• Court: Wyoming Supreme Court
• Decided: August 18, 1988
• Docket: 86-283
• Status: Published

Opinions

URBIGKIT, Justice.

This appeal presents a UCC and FAA airplane security-interest-priority conflict between two lenders, and raises a question of the validity of antecedent-debt inclusion in document clauses variously labeled dragnet or anaconda. We reverse the trial court’s finding that the first recorded security interest should be accorded priority.

The rule here established is that an anaconda or dragnet clause, as a matter of notice to subsequent parties in interest or claimants to the encumbered asset, is valid in the absence of actual knowledge only if the additionally included existent indebtedness is expressly described in the security instrument which constitutes the filed notice. Under security-document notice requirements, any subsequent party claiming an interest should have constructive or actual notice of the secured total claimed to lose priority to the pre-existing dragnet clause included indebtedness.

This is a case of first impression in Wyoming, and there is a paucity of authority where the conflict has arisen between creditors and not between the creditor and debtor. Additionally, this case, involving airplanes, invokes federal law in the preemptive filing requirement of federal statute, 49 U.S.C.App. § 1403, and state law priority effect under the Uniform Commercial Code.¹

I. FACTS

On August 7, 1981, Richard and Verlene M. Walker borrowed approximately $93,000 from First Interstate Bank of Riverton, N.A., Wyoming (First Interstate Bank). Their promissory note was secured by “Rigs.” Renewed a second time on July 27, 1982, the Walkers then owed First Interstate Bank $77,000, as secured by “2 drilling rigs.” On April 6, 1984, the Walkers again approached First Interstate Bank for a loan of $7,328, which was provided based upon security agreement encumbrance of the Walkers’ airplane. That security agreement contained a dragnet clause, which the Walkers initialed separately, providing:

“In addition to the Note, this security agreement secures all amounts I owe to the Bank, whether now or later. This means that every loan I have now or get later is secured by this security agreement, as well as any other amount I may owe to Bank (such as an overdraft on my checking account).”

Conforming to federal law, 49 U.S.C. App. § 1403, which requires the recording of all conveyances affecting titles to aircraft with the Federal Aviation Administration (FAA) in Oklahoma City, Oklahoma, First Interstate Bank filed the security agreement on May 9, 1984.

On August 17, 1984, the Walkers contacted First National Bank of Cortez, Colorado (First National Bank), for a $58,836 loan, and offered their plane as collateral on a second lien to the prior $7,328 encumbrance. Relying on a title search of FAA records, which revealed only that dollar amount of prior encumbrance, First National Bank advanced the money, secured by the Cessna airplane collateral. This encumbrance document was filed with the FAA on September 12,1984. Walkers next executed a supplementary security agreement in favor of First Interstate Bank in September, 1984, recorded in October, 1984, re-securing the August 7, 1981 note and expressly including the airplane as security. In more recent foreclosure activity, First Interstate Bank sold the airplane and retained all proceeds, and the trial court determined that the dragnet clause in the initial airplane security agreement secured not only the $7,328 loan but accorded additional security for the earlier $93,000 obligation as against the later First National Bank $58,836 chattel security claim. A classic case of this kind of dragnet clause application is consequently presented, involving a prior indebtedness not directly referenced in document detail, and a later lender relying on the same security for loan collateral.

The clause used by First Interstate Bank was all-inclusive: “all amounts I owe to the bank, whether now or later.” The provisions invoke principles relating to after-acquired indebtedness as well as to previously existing debts. The philosophic difference is that the secured party can, in loan document, accurately enumerate any asserted existent indebtedness coverage at instrument execution date, to be contrasted with later incurred indebtednesses as, for example, overdrafts. Additionally, the UCC as enacted in Wyoming expressly provides for a future-advance clause in chattel mortgages:

“(e) Obligations covered by a security agreement may include future advances or other value whether or not the advances or value are given pursuant to commitment.” Section 34-21-923(e), W.S.1977 [UCC 9-204].

For a discussion of this clause, see II Gilmore, Security Interests in Personal Property, Ch. 35, § 35.5 at 931 (1965).

II. RELATION OF FEDERAL AND STATE LAW

The United States Congress and succeeding case law has clarified that the supremacy clause and federal statutes control the fact of recording, but the effect of recording and sufficiency of the recorded instrument remain questions to be determined under state law.

Section 503 of the FAA, 49 U.S.CApp. § 1403, establishes the recording system and provides:

“(c) Validity of conveyances or other instruments, filing. No conveyance or instrument the recording of which is provided for by section 503(a) [subsec. (a) of this section] shall be valid in respect of such aircraft, * * * against any person other than the person by whom the conveyance or other instrument is made or given, his heir or devisee, or any person having actual notice thereof, until such conveyance or other instrument is filed for recordation * * *.

“(d) Effect of recording. Each conveyance or other instrument recorded by means of or under the system provided for in subsection (a) or (b) of this section shall from the time of its filing for rec-ordation be valid as to all persons without further or other recordation * *

In 1964, Congress added section 506, and 49 U.S.C.App. § 1406 now provides:

“The validity of any instrument the recording of which is provided for by section 503 of this Act * * * shall be governed by the laws of the State, District of Columbia, or territory or possession of the United States in which such instrument is delivered, * * *.”

In Matter of Gary Aircraft Corp., 681 F.2d 365, 368-369 (5th Cir.1982), cert denied sub. nom. General Dynamics Corporation v. Gary Aircraft Corporation, 462 U.S. 1131, 103 S.Ct. 3110, 77 L.Ed.2d 1366 (1983), the court provided the analysis:

“Without question, section 506 reserves some areas of regulation for the states by assigning question of ‘validity’ to state law. At the same time, Congress has provided that exclusive means of rec-ordation and has preempted state laws providing filing systems for interests in aircraft. [Citations.]

* * * * * *

“After considering the language of the FAA and the CAA as well as their legislative history, we conclude that the FAA does not displace state law assignment of priorities to interests in aircraft.” “ * * * [E]very aircraft transfer must be evidenced by an instrument, and every such instrument must be recorded, before the rights of innocent third parties can be affected. Furthermore, because of these federal requirements, state laws permitting undocumented Or unrecorded transfers are pre-empted, * * *.” Philko Aviation, Inc. v. Shacket, 462 U.S. 406, 409-410, 103 S.Ct. 2476, 2478, 76 L.Ed.2d 678 (1983).

See also Bank of Lexington v. Jack Adams Aircraft Sales, Inc., 570 F.2d 1220 (5th Cir.1978); Northern Illinois Corp. v. Bishop Distributing Co., 284 F.Supp. 121 (W.D.Mich.1968).

III. VALIDITY OF FILING — REASON AND EFFECT

With priority of filing determinable under the federal statute, we then turn to the validity of filing as determined under the UCC and state law. The purpose of chattel security filing statutes is to provide notice, and any interpretative analysis should accord with that purpose. Lee, Protections and Priorities Under the Uniform Commercial Code, 17 Wyo.L.J. 1 (1962); Rudolph, Secured Transactions Under the Commercial Code, 14 Wyo.L.J. 220 (1960). It is noteworthy that neither author discussed the anaconda or dragnet relationship of filed instruments to pre-existing debts. See First National Bank of Rock Springs v. Ludvigsen, 8 Wyo. 230, 56 P. 994, reh. denied 8 Wyo. 230, 57 P. 934 (1899). The business purpose inculcated in filing statutes is to permit continued business transactions with ascertainable knowledge of risk factors involved. If notice perfection is not provided, that commercial protection is denied and security lending risk analysis rendered unjustifiably indeterminate. We apply an interpretative analysis that advances legislative purpose, while recognizing that the text should be interpreted as written. Aldisert, The Judicial Process, § 4 at 170 (1976).

The notice-of-encumhrance problem is amplified in airplane cases, since access to filed documents located in Oklahoma City, Oklahoma, to examine the actual instrument is denied as could be possible by a quick trip to the local court clerk’s office where other security documents are locally filed.

Unfortunately, this record does not demonstrate what would be found if physical examination of the records at the FAA facility had been made since the court’s declaratory judgment decision was rendered on a stipulated factual record consisting of copies of a few instruments. That record only demonstrates DOT-FAA form 8050-41(7-83) as filing acknowledgement, and that the pledge agreement security instrument document was “returned for your records, not needed for FAA files.” Consequently, the record does not portray what could be determined by any physical examination at the filing depository.²

In this case, the dragnet characteristic of the first filed count is not shown in dollar obligation. The result is that the document is uncommunicative to a later examining party for anything except as to the name of the encumbrancer and the one stated obligation. Consequently, other verification would be required to assure loanability as based on security status of unstated amounts with a contended priority.

In answering this dilemma, it was argued that the lender must call the other lender for confirmation and analysis of security document status. Practical recognition of proof-risk factors implicit to both the maker and recipient of such telephone calls justifiably rejects legislative contemplation of this assumptive responsibility within the filing statutes. It is our conclusion that if the legislature wants to afford this responsibility to subsequent lenders or buyers, the directive must be more specifically stated in statute than is presently found. See Lee, supra at 11.

An easy alternative is available to the initial lender by inclusion of notation on security agreement or financing statement, in the line for amount secured, that also demonstrates inclusion of prior indebted-nesses of whatever amount or anticipates future advances for a stated maximum. Likewise, a bold-faced addition to the normal printed forms could accommodate the same information in a fashion to state the dollar amount, so that examiners in Oklahoma City or indexing clerks in the local filing repository would recognize the total amount of security claimed.

IV. CHARACTER — CHARACTERISTICS OF DRAGNET-ANACONDA CLAUSES

As diverse factual categories, these security cases present six separate factual relationships which to some degree determine alternatively the results achieved, in differentiation of future advances from pre-existing obligation, real estate from chattel security, and two-party from third-party issues which, in the latter case, raise notice and filing attributes. See differentiation noted, First Nat. Bank in Dallas v. Rozelle, 493 F.2d 1196, 1202, n. 3 (10th Cir.1974); Safe Deposit Bank & Trust Co. v. Berman, 393 F.2d 401 (1st Cir.1968). Additionally, mutations or differing circumstances of jointly owned property and third-party acquired indebtednesses add separate complexities. A somewhat different classification of the cases is found in Annotation, Debts Included in Provision of Mortgage Purporting to Cover All Future and Existing Debts (Dragnet Clause)—Modern Status, 3 A.L.R.4th 690, 695. See Wilson v. Ripley County Bank, Ind.App., 462 N.E.2d 263 (1984); Farmers Trust and Sav. Bank v. Manning, Ia., 311 N.W.2d 285 (1981); Bank of Woodson v. Hibbitts, Tex.App., 626 S.W.2d 133 (1981)³.

V. PRE-EXISTING DEBT — SUBSEQUENT SECURITY CLAIMANT

Our decision will be confined to the factual structure presented of dragnet application to pre-existing debts invoking chattel security with an intervening subsequent, properly filed, security-interest claimant. The second lender had no actual notice of the pre-existing debt security claim of the prior lender, either by enumeration in security documents, or otherwise.

The general principle is effectively articulated in National Bank of Eastern Ark. v. Blankenship, Ark., 177 F.Supp. 667, 673 (1959), aff’d sub. nom. National Bank of Eastern Ark. v. General Mills, Inc., 283 F.2d 574 (8th Cir.1960):

“While a provision in a mortgage that it shall be security for indebtedness other than the primary obligation described therein is valid, a reading of the Arkansas cases indicates that such provisions are not favorites of equity, and that they will be construed rather strictly. In this connection, in Berger v. Fuller, 180 Ark. 372, 377, 21 S.W.2d 419, 421 [1929], the Court said: ‘Mortgages of this character have been denominated “anaconda mortgages” and are well named thus, as by their broad and general terms they en-wrap the unsuspecting debtor in the folds of indebtedness embraced and secured in the mortgage which he did not contemplate, and to extend them further than has already been done would, in our opinion, be dangerous and unwise * * *.’ “The ‘other indebtedness’ secured by a mortgage may be either antecedent or subsequent. Where it is antecedent, it must be identified in clear terms, and where it is subsequent, it must be of the same class as the primary obligation secured by the instrument and so related to it that the consent of the debtor to its inclusion may be inferred. * * *

* * * * * *

“ * * * Where a mortgage is given to secure a specific debt named, the security will not be extended as to antecedent debts unless the instrument so provides and identifies those intended to be secured in clear terms, and, to be extended to cover debts subsequently incurred, these must be of the same class and so related to the primary debt secured that the assent of the mortgagor will be inferred. * * *

* * * * * *

“ * * * ‘A debt created subsequent to the mortgage, being not yet in existence, may not in all cases be clearly indicated; whereas, antecedent debts may always be definitely stated, and for this reason the general expression, “other indebtedness,” would usually be treated as refers ring not to an antecedent debt but to one subsequently incurred.’” Quoting from Hendrickson v. Farmers’ Bank & Trust Co., 189 Ark. 423, 73 S.W.2d 725 (1934).

See also the discussion in that case as restated on appeal, National Bank of Eastern Ark. v. General Mills, Inc., supra.⁴

It is apparent that acquired indebted-nesses as attempted to be enfolded into the anaconda provision in security priority has received adverse attention, whether justified in absence of intent of the parties or a different transaction consideration equally applied to antecedent and future-advance cases. Berger v. Fuller, 180 Ark. 372, 21 S.W.2d 419 (1929), purchased pre-existing indebtedness; Thorp Sales Corp. v. Dolese Bros. Co., 453 F.Supp. 196 (W.D.Okla.1978), quoting from National Bank of Eastern Ark. v. Blankenship, supra:

“ ‘The “other indebtedness” secured by a mortgage may be either antecedent or subsequent. Where it is antecedent, it must be identified in clear terms, and where it is subsequent, it must be of the same class as the primary obligation secured by the instrument and so related to it that the consent of the debtor to its inclusion may be inferred.’” Thorp Sales Corp. v. Dolese Bros. Co., supra, 453 F.Supp. at 200.5

These principles afford a result in general application of the judicial attitude frequently stated to require careful scrutiny and strict construction as factually disproving concealment, haste, or artifice. Gates v. Crocker-Anglo Nat. Bank, 257 Cal.App.2d 857, 65 Cal.Rptr. 536 (1968). See also First v. Byrne, 238 Ia. 712, 28 N.W.2d 509, 172 A.L.R. 1072 (1947). Marine Nat. Bank v. Airco, Inc., 389 F.Supp. 231 (W.D.Pa.1975); Wong v. Beneficial Sav. and Loan Ass’n., 56 Cal.App.3d 286, 128 Cal.Rptr. 338 (1976). In pre-code and Art. 9 consideration, see II Gilmore, supra, at 916.

Following the leadership of the Blankenship cases, this category of anaconda cases was reconsidered in the third principal case of Sowder v. Lawrence, 129 Kan. 135, 281 P. 921, 922-923 (1929):

“* * * The policy of the law with reference to the Recording Act is to thereby afford notice to the world as to the maximum amount of indebtedness against the property therein described. If a general clause of the kind and character found in this mortgage will afford a lien on the property for any and all private and secret obligations between the parties at the time of the execution of the mortgage, other creditors and subsequent purchasers would have no protection whatever.

“ ‘A mortgage securing a debt of a fixed amount cannot be extended so as to become a lien for another and different indebtedness not expressed.’ Jones on Chattel Mortgages, § 91.”

“The trust deeds on their face show that no antecedent indebtedness is specifically described. Thus the court was justified in finding that no antecedent debt was secured by the trust deeds, and that no intent was expressed that the other indebtedness clause was intended to secure debts primarily secured by the separate trust deeds.” National Bank of Eastern Ark. v. General Mills, Inc., supra, 283 F.2d at 578.

Although in a case involving a future-advance question, the same principle was refined by the Hawaiian court in Akamine and Sons, Ltd. v. American Sec. Bank, 50 Hawaii 304, 440 P.2d 262, 268 (1968):

“ * * * Unless the prior or subsequent advance relates to the same transaction or series of transactions, the mortgage must specifically refer to it for the advance to be secured. This court will not assist a lending institution in an attempt to captivate a borrower by inclusion in a mortgage of a broad all inclusive dragnet clause.”

Similarly reasoned, although it also included the different-person indebtedness question, in First v. Byrne, supra, 28 N.W.2d at 512, the court determined:

“ * * * We are left to assume the mortgage form was used without discussion of the particular clause in question and with no special regard having been given to its consequences — certainly with no express common intent or purpose as to the debt in question.

“No reason is suggested why this debt was not referred to in the mortgage if it was intended to be included. It would seem good faith required some mention of it.”

In United States v. Fahrenkamp, 312 F.2d 627, 630 (8th Cir.1963), the federal court again followed the principles by citation of the Arkansas case:

“ ‘Where a mortgage is given to secure a specific debt named, the security will not be extended as to antecedent debts unless the instrument so provides and identifies those intended to be secured in clear terms, and, to be extended to cover debts subsequently incurred, these must be of the same class and so related to the primary debt secured that the assent of the mortgagor will be inferred. The reason is that mortgages, by the use of general terms, ought never to be so extended as to secure debts which the debt- or did not contemplate.’ Hendrickson v. Farmers Bank & Trust Company, 189 Ark. 423, 434, 73 S.W.2d 725, 729 (1934).”

See Archer-Daniels-Midland Co. v. North Arkansas Milling Co., 205 F.Supp. 524 (W.D.Ark.1961). See also Oklahoma’s adoption of the specific-identification rule. First Nat. Bank of Ardmore v. Gillam, 134 Okl. 237, 273 P. 261 (1927); Farmers Nat. Bank of Cherokee v. De Fever, 177 Okl. 561, 61 P.2d 245, 247 (1936):

“ * * * [A] chattel mortgage, executed on a printed form in which was inserted, in one of several blank spaces provided therein for the insertion of a description of the obligations to be secured, a specific description, including the amount, of a note executed at the same time, did not secure, by force of a further printed provision in the mortgage that it was to stand as security for all other indebtedness and liabilities of the mortgagor to the mortgagee, another existing note not identified in the mortgage.”

The Utah court, in First Sec. Bank of Utah v. Shiew, Utah, 609 P.2d 952 (1980), considered a dragnet clause as “a standard boilerplate provision” inserted in the home mortgage where the purpose of the mortgage was to purchase the house, and the issue was whether that mortgage carried into security right a subsequently claimed cattle and feed loan. Although the case could be defined as lacking a scintilla of evidence posture, the court approved with extensive quotation of Osborne, Nelson, Whitman, Real Estate Finance Law, § 12.8, p. 773 (1979):

“ ‘1. The mortgage will only secure advances made or debts incurred in the future. If the mortgagor already owes debts to the mortgagee at the time the mortgage is executed, it would supposedly be easy to identify those existing debts specifically; if they are not so identified, it is assumed that the parties did not intend to secure them.’ ”

In a case where the security document specifically referenced both the prior indebtedness and the promissory note which evidence that debt, the Alabama court determined:

“It is the law in Alabama, however, that a dragnet clause which, although not itemizing the existing indebtedness, does, by clear and unequivocal terms, reference and include a specific and identifiable antecedent debt, extends the coverage of the security agreement to that antecedent debt. The dragnet clause, therefore, may be given the full effect of its terms.” Dixie Ag Supply, Inc. v. Nelson, Ala., 500 So.2d 1036, 1040 (1986).

It is apparent that the more carefully defined and refined cases recognize the difference between the validity of a dragnet transaction as a theory and a question as to the specificity or criteria required in bringing the particular indebtedness within the purview of the security document language. We would also follow that academic approach in recognizing the validity of anaconda-dragnet within its proper arena of commercial lending transactions, as a theory, and then assess a requirement of specificity, regularity, and detail.

VI. WYOMING STATUTE

In this case, involving a third-party claimant, Wyoming laws regarding filings and notice acquire significance. Section 34-21-927, W.S.1977, Request for statement of account or list of collateral, invading the field of actual notice if a copy is furnished to the succeeding interest holder, and § 34-21-931(c), W.S.1977 (1987 Cum.Supp.), which provides:

“The filing of a financing statement otherwise required by this article is not necessary or effective to perfect a security interest in property subject to:

“(i) A statute or treaty of the United States which provides for a national or international registration or a national or international certificate of title or which specifies a place of filing different from that specified in this article for filing of the security interest;

“(ii) The following statutes of this state, W.S. 31-2-101 through 31-2-105 and, except as otherwise provided in subsection (j) of this section, W.S. 31-2-501 through 31-2-508, but during any period in which collateral is inventory held for sale by a person who is in the business of selling goods of that kind, the filing provisions of this article (part 4) apply to a security interest in that collateral created by him as debtor; or

“(iii) A certificate of title statute of another jurisdiction under the law of which indication of a security interest on the certificate is required as a condition of perfection (W.S. 34-21-903(b) (9-103(2)).”

Residually applicable to this defined class are § 18-3-402(a)(ix), W.S.1977 (1987 Cum.Supp.), outlining the duties of the county clerk:

“Keep in his office a general index, direct and inverted, in which he shall make correct entries of every instrument recorded or filed under appropriate headings, entering the names of the grantors and grantees in alphabetical order. He shall make correct entries in the index of every instrument required by law to be entered therein. He shall immediately note in the appropriate index, in the proper column and opposite the entry whenever any mortgage, bond or other instrument has been released or discharged from record, whether by written release or by recording a deed of release;”

and § 18-3-104, W.S.1977, relating to copies of instruments and excerpts:

“Copies of all documents, writs, proceedings, instruments, papers and writings filed or deposited in the office of any district judge, county clerk or county treasurer and transcripts from books of record or proceedings kept by any such officers, with the seal of his office affixed, is prima facie evidence in all cases.”

VII. CONVERSE AUTHORITY

First Interstate Bank cites two cases as converse authority: Clovis Nat. Bank v. Harmon, 102 N.M. 166, 692 P.2d 1315 (1984), and Personal Jet, Inc. v. Callihan, 624 F.2d 562 (5th Cir.1980). Personal Jet is inapplicable, since the successful creditor was the only claimant with security interest properly perfected on the aircraft, wherein the court determined that the conflicting claimant did not have a document “sufficient to create a security interest.” Clovis National involved protection of a guarantor, and included both pre-existing and after-acquired indebtednesses in a real estate mortgage relationship. Priority was granted mathematically, based on filing-date status, and the case includes no discussion of the anaconda-dragnet inquiries. That case is essentially the only authority which could sustain a contrary result, but lacks cogent inquiry or logical persuasion.

VIII. CONCLUSION

We adopt the persuasive posture of the Blankenship cases requiring specification of the amounts in order for dragnet clauses to afford recording priority for pre-existing debt.

The judgment is reversed, and the case is remanded for proceedings in accord herewith.

1 . Law journal consideration of the dragnet-anaconda application is particularly directed to the subject of future advances. Note, Future Financing Advances under the Uniform Commercial Code; Curbing the Abuses of the Dragnet Clause, 34 U.Pitt.L.Rev. 691 (1973); Blackburn, Mortgages to Secure Future Advances, 21 Mo.L.Rev. 209 (1956); Note, Enforceability of “Dragnet Clauses" in Deeds of Trust; The Current State of the Law in Texas, 56 Texas L.Rev. 733 (1978); Note, Future Advance Clauses in Tennessee Construction and Effect, 5 Mem.St.U.L.Rev. 586 (1975); Note, Mortgages Securing Future Advances — A Need for Legislation, 47 Iowa L.Rev. 432 (1961-62); Annotation, Debts Included in Provisions of Mortgage Purporting to Cover All Future and Existing Debts (Dragnet Clause)— Modern Status, 3 A.L.R.4th 690.

2 . What is to be seen from the stipulated record is contained in a form completed as an examination certifícate of records by Federal Aviation Title Company dated November 23, 1984 which details for the involved airplane:

"(1) Ownership Registration Certificate:

"Name Walker, Richard L. DBA R & R Drilling Co.

Date Issued 7-19-79

"Address 1018 East Lincoln

Riverton Wyoming 82501

Date Approved 7-19-79

“Type of Ownership Individual

* * * * *

"(2) Liens and Encumbrances — Type: SECURITY AGREEMENT

“From Richard Walker & Verlene M. Walker DBA R & R Drilling

"To First Interstate Bank of Riverton, N.A.

“Assignment Date-

“Holder First Interstate Bank of Riverton, N.A.

Date 4-06-84

“Address P.O. Box 233 Filed 4-23-84

Riverton, Wyoming 82501 Recorded 5-08-84

"Original Amount $ 7,328.35

Document Number H41379

"ADDITIONAL INFORMATION

"SECURITY AGREEMENT

"FROM: Richard L. Walker DBA R & R Drilling Co.

“TO: First National Bank, Cortez, P.O. Drawer A, Cortez, CO 81321

"AMOUNT: $58,836.73

"DATED: 8-07-84 FILED: 8-17-84

RECORDED: 9-14-84

DOCUMENT: #J30461

"SUPPLEMENTAL SECURITY AGREEMENT

"FROM: Richard Walker & Verlene M. Walker DBA R & R Drilling Co.

“TO: First Interstate Bank of Riverton, N.A.

"AMOUNT: $77,605.53

"DATED: 9-04-84 FILED: 9-13-84

RECORDED: 10-05-84

DOCUMENT: #A185i

3 . The most comprehensively litigated issue involving dragnet-anaconda is found for future advances as raising inquiry of similar or dissimilar transaction rules. Among the frequently cited cases which denominate the denial rule for dissimilar transaction are Freese Leasing, Inc. v. Union Trust & Sav. Bank, Stanwood, Ia., 253 N.W.2d 921, 3 A.L.R.4th 681 (1977); Emporia State Bank & Trust Co. v. Mounkes, 214 Kan. 178, 519 P.2d 618 (1974); and John Miller Supply Co., Inc. v. Western State Bank, 55 Wis.2d 385, 199 N.W.2d 161 (1972). See also Marine Nat. Bank v. Airco, Inc., 389 F.Supp. 231 (W.D.Pa.1975). Illustrative cases include, National Acceptance Co. of America v. Blackford, 408 F.2d 20 (5th Cir.1969); Beavers v. Le Sueur, 188 Ga. 393, 3 S.E.2d 667 (1939); Akamine and Sons, Ltd. v. American Sec. Bank, 50 Hawaii 304, 440 P.2d 262 (1968); Matter of Estate of Simpson, Ia., 403 N.W.2d 791 (1987); Canal Nat. Bank v. Becker, Me., 431 A.2d 71 (1981); Second Nat. Bank of Warren v. Boyle, 155 Ohio St. 482, 99 N.E.2d 474 (1951); Community Bank v. Jones, 278 Or. 647, 566 P.2d 470 (1977); First Sec. Bank of Utah v. Shiew, Utah, 609 P.2d 952 (1980); In re Grizaffi, 23 B.R. 137 (Bkrtcy.D.Colo.1982).

Cases in future advance category stating a somewhat different rule with not necessarily similar results are essentially definable in clear-intent application and include Uransky v. First Federal Sav. & Loan Ass’n of Fort Myers, 684 F.2d 750 (11th Cir.1982); In re Riss Tanning Corp., 468 F.2d 1211 (2d Cir.1972); Kenneally v. Standard Electronics Corp., 364 F.2d 642 (8th Cir.1966); Ex Parte Chandler, Ala., 477 So.2d 360 (1985); First Nat. Bank of Guntersville v. Bain, 237 Ala. 580, 188 So. 64 (1939); Mohler v. Buena Vista Bank and Trust Co., 42 Colo.App. 4, 588 P.2d 894 (1978); State Bank of Albany v. Fioravanti, 51 N.Y.2d 638, 438 N.Y.S.2d 947, 417 N.E.2d 60 (1980); Bloom v. First Vermont Bank & Trust Co., 133 Vt. 407, 340 A.2d 78 (1975).

4 . Although not relevant now on the declaratory-judgment record, we would not necessarily afford priority to subsequent acquirers of interest if actual knowledge of the claimed dragnet debt security application did exist. See Dixie Ag Supply, Inc. v. Nelson, Ala., 500 So.2d 1036 (1986).

5 . Joint owners and collaterally involved parties invoke a similar negative construction under the purview of general principles of strict construction. Gates v. Crocker-Anglo Nat. Bank, 257 Cal.App.2d 857, 65 Cal.Rptr. 536 (1968); Mohler v. Buena Vista Bank & Trust Co., supra, 588 P.2d 894 at n. 3; National Acceptance Co. of America v. Exchange Nat. Bank of Chicago, 101 Ill.App.2d 396, 243 N.E.2d 264 (1968); Farmers Trust and Sav. Bank v. Manning, supra, 311 N.W.2d 285; In re Peterson, 27 B.R. 95 (Bkrtcy.M.D.Fla.1983). Likewise, tort claims are not normally dragnetted to security priority. Trapp For Use and Benefit of First Mississippi Bank of Commerce v. Tidwell, Miss., 418 So.2d 786 (1982).