Reynolds v. Morton

136 P. 795, 22 Wyo. 174, 1913 Wyo. LEXIS 44

• Court: Wyoming Supreme Court
• Decided: December 8, 1913
• Docket: No. 741
• Status: Published

Opinion

Beard, Justice.

This action was brought by John Morton against William Reynolds in the District Court of Converse county to recover the possession of certain cattle. The case was transferred on change of venue to Carbon county, where the cause was tided and judgment rendered in favor of plaintiff. Defendant brings error.

The plaintiff claimed the right to the possession of the cattle in dispute by virtue of a chattel mortgage executed to him by Frederick W. Rimington and wife August 26, 1909, and filed in the office of the County Clerk of Converse county August 30, 1909, and given to secure a promissory note of said Rimingtons for $12,726.52, dated August 26, 1909, and due August 26, 1912. The action was commenced October 7, 1911.

The defenses pleaded were: First, a general denial, and second, what is denominated a cross-petition, in which it is alleged, in substance, that one Porter G. Fowler on July 13, 1907, purchased the cattle from Reynolds and gave him a chattel mortgage thereon to secure three notes of that date for $1,113.33 each and due, one in one year, one in two years and one in three years from date, which mortgage was filed in the office of the County Clerk of Converse county July 13, 1907. That about December 12, 1907, Fowler sold the cattle to Rimington, who assumed and agreed to pay the-notes secured by the Fowler mortgage, and that Rimington then took possession of the cattle. “That from time to time, the said Powell (Porter?) G. Fowler, from the offspring of said registered Hereford cattle aforesaid, paid unto the said defendant such sums of money, so that' on August 10, 1910, there yet remained of said indebtedness due and owing, the sum of $1,500.00 and thereupon, the said defendant agreed to extend payment of said remaining indebtedness to the amount of $1,500 for one year' from that date, to evidence which agreement and in consideration of the foregoing chattel mortgage and notes the said plaintiff (probably meaning Rimington as it was Rim-ington’s mortgage which was offered in evidence) made and delivered his note, dated August 10, 1910, for $1,500.00, due one year after that date, payable to the order of defendant, and executed, acknowledged and delivered unto said defendant an additional chattel mortgage, describing said note of-that date, again mortgaging the twenty-four head of said cows, and-the one bull of the said original herd.” Alleged the filing of the mortgage and that it remained unpaid and unsatisfied. Alleged, “that there is now due upon said notes and mortgages from the said Porter G. Fowler unto the said defendant $1,675, 110 part whereof has been paid.” To the cross-petition or new matter pleaded by the defendant, the plaintiff replied, denying each and every allegation therein contained.

On the trial plaintiff offered in evidence a certified copy of the mortgage under which he claimed the right to the possession of the cattle in controversy. To the introduction of which defendant objected as incompetent, irrelevant and immaterial, because not acknowledged in compliance with the statute for the acknowledgment of chattel mortgages to entitle it to record. The objection -was overruled and the certified copy of the mortgage admitted in evidence. That ruling is assigned as error. The acknowledgment as it appears oh the certified copy of the mortgage, omitting immaterial parts, is as follows:

“State of Wyoming, County of Converse.)ss. I, Jas. W. McDevitt, a notary public in and for said county, in the state aforesaid, * * * * * *

Given under my hand and notarial seal this 26th day of August, A. D. 1909. My commission expires August 4, 1910.

(seal)

Jas. W. McDevitt,

Notary Public.”

The defendant contended and offered to prove in support of his objection that McDevitt was not a notary of Converse county, 'but was in fact a notary in and for Laramie county, and that his official seal impressed on the original mortgage was his seal as a notary of Laramie county. The court sustained an objection to the evidence offered to so prove. Without deciding whether the ruling was right at that stage of the case or whether the certificate on its face was sufficient to admit the mortgage to record or rather to be filed in the clerk’s office as provided by our statute, we think the defendant was not prejudiced by the admission in evidence of the certified copy of the mortgage for the reason, that if the acknowledgment was in fact as defendant claimed, it would have been sufficient. The presumption is that the notary acted within his jurisdiction, and Rimington testified that his wife was in Laramie county at the date of the acknowledgment and that he was there about that time. Taking it for granted that McDevitt was a notary for Laramie county, the presumption is that the acknowledgment was taken in that county, which presumption is supported by the testimony above referred to, and unless there is sufficient in' the certificate to overcome that presumption it must be held to have been so taken. In Angier v. Schieffelin, 72 Pa. St. 106, (13 Am. Rep. 659), the acknowledgment was 'before E. H. Chase, a justice of the peace. The certificate was as follows: “Eirie county,)ss. Before the subscriber, a justice of the peace of said county,” etc., and was signed “E. H. Chase (L. S.).” It was admitted that Chase was not a justice of the peace of Erie county, but was of Crawford county, where the mortgage was recorded. The court said: “Had Chase been a justice of the peace of Erie county, the' acknowledgment before him by the mortgagor, although the land lay in Crawford, or any other county in the state, would have been all right, and the duty of the recorder of Crawford county to enter it of record, when offered for that purpose, would have been undoubted. This being the appearance of things, it was properly put on record by the recorder, and was thence prima facie notice to terretenant of the encumbrance/’ * * * * * *. “It is very evident that the mortgage was filled up on an Erie county blank, and that the justice neglected to alter the name of the county referred to in the scilicet, from Erie to Crawford; hence the error. But in point of fact the mortgage was well acknowledged, as the testimony showed.” It appeared that the mortgage was in fact acknowledged in Crawford county. In Alexander v. Houghton, 86 Tex. 702, 26 S. W. 937, the certificate of acknowledgment was as follows: “The State of Texas, Runnels county. Before me, Geo. W. Caldwell, a notary public in and for said county,” etc. “Given under my hand and seal of office, this 5th of June, 1882.

Geo. W. Caldwell,

Notary Public, Bexar County, Texas.”

In the opinion that court said: “Article 3366, Revised Statutes, prescribed what character of seal the notary, should have, and required that he should úse it to authenticate his official acts. The seal was required to have engraved upon it the county for which he was appointed, (see sec. 3565, Wyo. Comp. Stat. 1910, for similar requirements) and it is to be presumed that a seal with the words Bexar county was affixed to this certificate. We do not believe that the caption furnishes the more certain guide as to the place where the certificate was made. * * * It is a common thing for deeds to be prepared in a county where the land is situated and where the title must be examined for the purchaser, upon blank forms printed for that county, with like blanks for certificates of acknowledgment in which that county is printed in the caption, and these deeds sent to other counties to be acknowledged by the grantors. If the officer in the latter county fails to change the name of the county in the caption, such conflict as appears in this case is inevitable. The common sense solution of this matter 'is, that this deed was prepared in Runnels county upon a blank form printed for transfers in that county, with like blank form for a certificate to be used by officers of that county, and that the notary public in Bexar county failed to change the county in the caption from Runnels to Bexar. It is much more probable that it should have so occurred than that the notaiy public should have gone from Bexar to Runnels county to take the acknowledgment, or that he should have been there accidentally, and been called upon by the parties in preference to an officer of that county. We answer that the certificate of acknowledgment in this case was sufficient in itself to admit the deed to record, and that if properly made the record was such as the law requires to support the statute of five years.” The mortgage was good between the parties to it without acknowledgment or filing. (Boswell v. Bank, 16 Wyo. 161-182, 92 Pac. 624, 93 Pac. 661; Schlessinger v. Cook, 9 Wyo. 256, 62 Pac. 152). And it was incumbent upon plaintiff to establish a lien upon the property in order to maintain the action. The mortgage was competent, relevant and material evidence tending to prove that fact and was admissible for that purpose, and when it and tlie'note which it was given to secure were introduced in evidence and evidence produced that the note was unpaid, that made a prima facie casé for plaintiff.

It is argued here that the certified copy of the mortgage should not have been admitted because the seal of the county clerk was not affixed to the certificate. That objection was not made in the trial court. The objection that the evidence was immaterial, incompetent and irrelevant was too general to present that objection, especially so when by the objection the court’s attention was directed to the specific ground on which it was claimed it was immaterial, irrelevant and incompetent, viz: that the mortgage was not properly acknowledged. Nothing was mentioned in the objection about the clerk’s certificate. (Noonan v. Caledonia Min’g Co., 121 U. S. 393, (7 Sup. Ct. 911, 30 L. Ed. 1061); Gregory v. Langdon, 11 Neb. 166, 7 N. W. 871; Falk v. Gast L. & E. Co., 54 Fed. 890, 4 C. C. A. 648; Jochen v. Tibbells, 50 Mich. 33, 14 N. W. 690).

The defendant sought to prove a superior lien on the cattle by virtue of the Fowler mortgage and also by virtue of the Rimington mortgage of date Aug. 10, 1910. He offered each of those mortgages in evidence and they were excluded. But, had they been admitted', they would not have made out a defense. As shown on their faces the notes alleged to be secured thereby were past due, and neither of the notes was produced or offered in evidence, or their non-production accounted for. There is no presumption that a past due note, not produced or its non-production accounted for, is unpaid and still remains the property of the payee. For aught that appears in the record the notes may have been paid or assigned. In Hendrie v. Canadian Bank of Commerce, 49 Mich. 401, 13 N. W. 792, the property was in the possession of the bank, claiming under a chattel mortgage, and Hendrie replevied. The court said: “In reference to the rights of the mortgagee. It appears that this mortgage was given to secure the payment of certain promissory notes, and they were not offered in evidence. Had Hendrie in attempting to gain possession of this property been a wrongdoer, perhaps no proof thereof would have been necessary, as the prior possession 'by the bank would, as claimed, have entitled it to recover. As, however, Hendrie was entitled to the possession it is clear the bank could only succeed by showing a better right, and this was not done.” So here. Morton proved his lien and right to possession unless defendant established a better right, which he failed to do. That it was necessary for the defendant to produce the notes, or account for their non-production in order to establish his lien, see Bassett v. Hathaway, 9 Mich. 28; George v. Ludlow, 66 Mich 176, 33 N. W. 169; Ward v. Munson, 105 Mich 647, 63 N. W. 498; Schumpert v. Dillard, Pinson & Co., 55 Miss. 348; Bergen v. Urbahn, 83 N. Y. 49; Field v. Anderson, 55 Ark. 546, 18 S. W. 1038; Lucas v. Harris, 20 Ill. 166; Flynn v. Hathaway, 65 Ill. 462; 2 Jones on Mortgages (6th Ed.) sec. 1469. At the close of the evidence the court instructed the jury to return a verdict for plaintiff. The defendant, having failed to offer sufficient evidence to establish a lien upon the property, had he been permitted to introduce all he offered, is not in a position to complain of the instruction. On the record here presented the instruction was not erroneous. The judgment is affirmed.

Affirmed.

Scott, C. J., concurs. Potter, J., did not sit.