Stuart v. First National Bank of Cleveland

1935 OK 1029, 50 P.2d 297, 174 Okla. 292, 1935 Okla. LEXIS 1448

• Court: Supreme Court of Oklahoma
• Decided: October 22, 1935
• Docket: No. 25499.
• Status: Published

Opinion

PER CURIAM.

W. K. Judy executed to the plaintiff a promissory note secured by a chattel mortgage on an automobile. This mortgage was filed for record in Pawnee county on March 4, 1932. On May 4, 1932, Judy sold tlie automobile to defendant, John A. Stuart, and delivered the car to him. at Pawhuska. Plaintiff then brought this action to replevin the automobile. The lower court directed a verdict in favor of the plaintiff, and defendant appeals.

The evidence was undisputed that the situs of the automobile was in Pawnee county when the mortgage was executed, and that the mortgage was filed for record in Pawnee county. This being true, defendant had constructive notice of this mortgage for 120 days after its removal from Pawnee county. Section 11279, O. S. 1931.

When mortgaged property is removed from one county to another, a chattel mortgage on file in the county from which It is removed imparts constructive notice to subsequent purchaser in the county to which it is removed for a period of 120 days; and one who purchases such property within the 120-day period acquires no title as against such mortgage. National Bond & Inv. Oo. v. Central Nat. Bank of Enid, 142 Okla. 96, 285 P. 828; Morgan v. Stanton Auto Co., 142 Okla. 116, 285 P. 962; Motor Exchange v. Commercial Inv. Co., 151 Okla. 176, 3 P. (2d) 178; Drum Standish Commission Co. v First Nat. Bank & Trust Co., 168 Okla. 400, 31 P. (2d) 843.

Defendant, having purchased the car in; question within the 120-day period, acquired no title as against plaintiff’s mortgage.

Defendant complains that the court should have submitted the ease to the jury and erred in directing a verdict.

The court properly directed a verdict, since the evidence clearly showed plaintiff was entitled to recover, and there is not sufficient evidence in the record to justify a verdict for the defendant. Cassidy v. First Nat. Bank in Tonkawa, 143 Okla. 42, 287 P. 392.

The judgment of the lower court is affirmed.

The Supreme Court acknowledges the aid of Attorneys Paul N. Lindsey, Louie G. Kneeland, and Jerome I-Iemry in the preparation of this opinion. These attorneys constituted an advisory committee selected by the State Bar, -appointed by the Judicial Council, and approved by the Supreme Court. After the analysis of law and facts was prepared by Mr. Lindsey and approved by Mr. Kneeland 'and Mr. Hemry, the cause was assigned to a Justice of this court for examination and report to the court. Thereafter, upon consideration by a majority of the court, this opinion was adopted.

McNEILL, C. J., and RILEY, BUSBY, PI-IELPS, and GIBSON, JJ., concur..