Nix v. Watts , 121 Ark. 346 ( 1915 )

Hart, J.,

(after stating the facts). The court instructed the jury that it should not consider the mortgage made by Dees to Nix in arriving at its verdict, and counsel for the defendant Nix urge that the court erred in so instructing the jury. We do not agree with them. It will be remembered that the mortgage given by Dees to Nix was handed to the clerk ¡by Nix with the verba! instruction to file, but not to record it, the filing fee being paid.

Section 5407 of Kirby’s Digest, provides that whenever ¡any mortgage of personal property ¡shall be filed with the recorder upon which is endorsed the following words, ‘ ‘ This instrument is to be filed, but not recorded, ’ ’ and the endorsement signed by the mortgagee, his agent or attorney, the instrument shall be a lien upon the property described in it from the time of filing. The effect of our decisions upon this statute is to make any endorsement on the mortgage of the import required by the statute sufficient. State v. Smith, 40 Ark. 431; Price v. Skillern, 60 Ark. 112.

The mortgage in question did not contain the endorsement required by the statute nor words ¡equivalent thereto. The mortgagee handed the mortgage to the recorder, and gave him verbal directions to file, but not record it. This was not a compliance with the statute, and the mortgage never became a lien on the crops ¡against strangers. Dedman v. Earle, 52 Ark. 164.

Thus it ¡will be seen that the statute not having been complied with by Nix, he did not have a lien on the crop raised ¡by Dross which was prior to the rights of third persons. ¡So, if it be conceded that the mortgage given by Dees to Nix covered the crop raised by Dross, the subtenant of Dees, the mortgage would only be good between Dees and Nix for the reason that in its ¡registration, Nix did not ¡comply with the statute ¡as above indicated. Dross leased from Dees ¡all the land on the Dickey place except about ten acres. He gave a mortgage upon all of the crop to be raised by him during the year 1910 to the Keo Mercantile Company for supplies furnished 'and to be furnished him in making his crop. The Keo Mercantile Company transferred its account, together with the mortgage, to secure the same, to Watts in October, 1910. During the same month, Gross sold all the crop raised by himself on the Dickey f arm to Watts and executed a bill of sale to Watts therefor, and under this bill of sale and under the mortgage executed by Gross to the Keo Mercantile Company, Watts acquired title to the crop which, for the reasons above given, was superior to the lien of Dees.

Nix derived his title to the three bales involved in the replevin suit by 'an alleged purchase from Dees under his mortgage. For the reasons above given, the title of Watts was superior to the lien of Nix, and the court correctly told the jury that it should not consider the mortgage made by Dees to Nix in arriving at its verdict.

It is next insisted by counsel for the defendant Nix that there is not sufficient evidence to support the verdict of the jury on account of the corn. It is true Nix denied ■that he got any of the corn raised by Gross; but Watts testified that he heard Nix say that he had the corn which was the subject-matter of this litigation, and that he was not going to turn it over to Watts, and he stated that Nix testified to this fact in the trial in the justice of the peace court. This testimony was sufficient to warrant the jury in finding for the plaintiff Watts on account of the corn.

It is also insisted by counsel for the defendant Nix, that there is not sufficient evidence to support the finding of the jury against him on account of the seven bales of cotton. According to the testimony of Nix, he did not receive this cotton, but we are of the opinion that the testimony of Watts warranted the verdict of the jury. Watts testified that Dees turned over three bales of cotton to Nix, that Nix sold the cotton to Bird, and that he then instituted suit against both Bird and Nix to recover these three bales of cotton. He also testified that during the trial of that case before the justice of the peace, Mr. Dees testified that he had delivered seven other bales of -cotton to Mr. Nix, -and that be gave the weight land prices of these seven bailes, and that Watts asked Nix if the amounts were correct, and Nix replied ■that they were.

We have carefully examined the record, -and find no prejudicial error in it; therefore, the judgment will be affirmed.