Hall v. Aitkin , 25 Neb. 360 ( 1889 )

Reese, Ch. J.

This was an action to recover the purchase price paid for a team of horses sold by plaintiff in error to defendant in error. It was alleged in the petition that plaintiff in error had no title at the time of the sale, the team being under mortgage to the Aultman <& Taylor Company, •a corporation organized under the laws of the state of Ohio, and that since the purchase by defendant in error the mortgagee had deprived him of possession, by taking the property and foreclosing the mortgage.

The answer filed by plaintiff in error admitted the sale ■of the property, substantially as alleged, but denied the extent of the consideration, and denied all the other allegations of the petition.

A trial was had to a jury, which resulted in a verdict in favor of defendant in error for the sum of $275, and upon which judgment was rendered. The 'cause is brought to this court by proceedings in error, defendant below being plaintiff in error here.

The motion for a new trial and the petition in error contain a large number of assignments of error, but we shall notice only such as are presented by the plaintiff’s brief, following the order therein adopted.

There is no dispute but that the property was taken by the Aultman & Taylor Company, and sold as upon the foreclosure of a mortgage. The evidence shows that-,, about four months after the purchase of the property by defendant in error from plaintiff in error, defendant in error had the team in question hitched to his wagon and tied to a hitching post in the city of Kearney, and without his knowledge or consent an agent of the mortgagee unhitched the horses from the wagon and took them to a barn, where they were kept until they were sold upon the •street.

Upon the trial a witness by the name of Sharp was called by defendant in error, who was interrogated as to his knowledge of the team, and for the purpose of identifying them as being the team mortgaged. During his examination the following question was asked him:

Q,. (Handing.) “Examine that mortgage and ascertain the date of it, and state if you can identify it?”

To this question plaintiff in error objected, and -objected to the paper being used for any purpose by the witness,, unless it was introduced in evidence.

The witness stated that he had never seen the mortgage-before, and could not identify it. He was then asked if the ages of the horses described in the mortgage corresponded with the ages of the horses sold. The answer was, “ They would not be quite two years old when this mortgage was given. It would lack from November until spring. They were put in as yearlings, but were coming two years old.” To this plaintiff in error objected, and moved to strike out as incompetent, immaterial, and because there was no proof of the existence, at any time, of an original of which this paper is alleged to be a copy. The objection and motion were overruled. We quote further: ''Plaintiff here offers in evidence, for the purpose of identification of the mares in controversy, a certified copy of the chattel mortgage from Charles Masters and B. E. Masters to the Aultman & Taylor Company. Defense object as improper, incompetent, and no proof of the existence of an original. - Overruled. • Defeiise excepted.

“ Q. (Handing Exhibit A again to witness.) Examine' the ages of the two horses described there, called colts in the mortgage, and state to the jury, on that examination,, how they compared in age and color with the mares you saw in the possession of Mr. Aitkin in June last?

" Defense objects as immaterial and irrelevant. Overruled. Defense excepts.”

The objection here presented seems to be to the introduction of a certified copy.of the mortgage instead of the original.

In this action of the court we can see no error.

Section 14 of chapter 32 of the Compiled Statutes provides, in substance, that to make a mortgage effective,, where possession is not taken by the mortgagee, it is necessary that the mortgage, or a true copy thereof, shall be filed in the office of the county clerk. It appears that the-original was so filed, and the instrument introduced in-evidence was a certified copy of such original. By the filing of the original, it became a part of the record in the county clerk’s office, and of course could not properly be removed.

Section 408 of the civil code provides that, " duly certified copies of all records and entries or papers belonging to any public office, or by authority of law filed to be kept therein, shall be evidence in all cases of equal credibility as would the original records or papers so filed.”

The offer made by the attorney for defendant in error was of a certified copy of the chattel mortgage, and the record shows the proper certificate was attached to the instrument introduced.

John W. Shahan, the county clerk of Buffalo county, was called as a witness, who testified that he was the custodian of the records and of chattel mortgages filed in the office of the county clerk, when he was asked the following question:

Q,. State if you find any chattel mortgage filed from Chace Masters and • B. F. 'Masters, to the Aultpian & Taylor Company ? If so, state the date of the filing.

A. Here is a chattel mortgage from Chace Masters and B. F. Masters to the Aultman & Taylor Company, dated November 21, 1883, and filed December 7, 1883.

“ The same is here marked exhibit B, and offered in evidence by the plaintiff. Defense object, as it does not purport to be a mortgage, but simply a copy and not a certified copy of anything. Nor does it purport to be an original, nor has there been any proof that any ever existed. Overruled. Defense excepts. A true and correct copy of said exhibit B is hereto attached.”

So far as we are able to see, exhibit B is a copy of exhibit A, hereinbefore referred to. And whether it is or not, is not deemed material. There seems to have been no proof offered that the mortgage exhibited was not executed by the persons whose names appear thereon, nor that it was not the original mortgage. The copy attached to the record as exhibit'B is a copy of the instrument introduced. We are, therefore, unable to say whether the mortgage produced by the clerk, and offered in evidence, was the original or not. Neither can we say whether it was duly certified or not.

A Mr. Clapp was called by defendant in error, who, over plaintiff's objection, testified that he took possession of the property by the direction of Savidge and Nevins, the agents of the Aultman & Taylor Company, and stated, in substance, that his authority for taking possession was the certified copy of the mortgage which was introduced in evidence as exhibit A, or, at least, one very similar thereto. This testimony was objected to, for the reason that a certified copy of' the mortgage filed would not constitute sufficient authority for taking possession of the team; that the instrument executed by the mortgagor was the only authority by which he could have acted. We-think this objection has been sufficiently met by what wo have-already said. It was not so important that the person foreclosing the mortgage should have the original mortgage, as it was that such original, or a certified copy thereof, should have been filed, under the provisions of section 2 of chapter 12 of the Compiled Statutes, and, in, case the original was filed, then a certified copy thereof should be taken, as sufficient to justify the foreclosure. But we are not prepared to say that either the original or a copy should be in the possession of the mortgagee, or his agent conducting a foreclosure, the same not being resisted, if a mortgage of the kind did actually exist, and was duly filed. It is true that, in case such foreclosure-should be resisted, the mortgage or a certified copy thereof should be produced as a justification of the foreclosure. But this would become necessary only in case the right to-foreclose should be questioned. As shown by the exhibits, the mortgage was executed prior to the purchase by plaintiff in error,, and, of; course,; prior to-his sale, to defendant in error. This mortgage was of record in Buffalo-county. Whatever title was created thereby existed at the time of the sale from plaintiff in error to defendant in error. Plaintiff in error being in possession of the property at the time he sold it, warranted the title thereto. .When the mortgagee asserted his title, defendant in error immediately notified plaintiff in error of the proceeding, and required him to perfect his title to the property, or at least indemnify defendant in error. There seems to have been a dispute • as to which party could maintain the proper action of replevin, for the purpose of testing the title. That is, as to who should be the plaintiff in the action. Defendant in error finally' offered to plaintiff in error that he would permit the suit to be conducted in his name, provided plaintiff in error would furnish the necr cssary replevin bond, and indemnify him against costs. This, plaintiff in error declined to do, and the horses were sold under the mortgage, possibly without right. It seems to have been the conclusion of plaintiff in error that the mortgage was invalid, for some reason, and therefore he was not required to defend the title against it. He had his right to exercise his option in that behalf, but, as the mortgage existed at the time of his sale to defendant in error, and he having been notified of the assertion of title under that mortgage, we think it is-reasonably clear that he would have to stand the loss, even though there might be some defect in the title created by the mortgage. This was the view of the learned judge before whom the case was tried, and after the testimony had been introduced he stated to counsel, in presence of the jury, that, as he viewed the case, the plaintiff was entitled to recover upon the evidence, and that the only question to be submitted to the jury was-as to the measure of damages. This statement was accompanied by the reasons for so holding, which are too lengthy to be set out in this opinion. The jury were correctly instructed. Objection is now made to the statements made by the court, in the presence and hearing of the jury, and by which it is alleged plaintiff in error was prejudiced.

The fact that the decision of the district court was accompanied by an oral statement of his reasons therefor could, in no sense, be prejudicial to plaintiff in error. If the decision of the district court was erroneous, the judgment could for that reason be reversed; but if the decision was correct, the fact that it was made in the presence and hearing of the jury, by never so an elaborate statement of' the reasons for such decision, could not affect the rights of the parties. Neither could it prejudice the jury, for the instruction subsequently given in all respects followed the decision so made by the court. There is a clear distinction between oral statements made by the trial court, as in this case, where the statement consisted of a decision upon a legal proposition, and upon which the court acts and directs the jury accordingly, and where a court, by statements and insinuations made in the hearing of a jury, directs the minds of the jury in a particular channel in their deliberations upon questions of fact to .be submitted to them.' Such statements as in this case made to counsel, in deciding a question of law, are not only unobjectionable but entirely proper, while in the other case they are' reprehensible. The plaintiff in error has no cause of complaint as to the conduct of the trial court in the respect-named.

Plaintiff in error offered in evidence a certified transcript from the records of the county court of Custer county, from which it appears that B. F. Masters was deceased; that administration had been granted upon his estate, and that certain promissory notes payable to the Aultman & Taylor Co., possibly the ones secured by the mortgage under which the property herein was taken, were filed against the estate, and that upon a final hearing by the county judge, no evidence having been introduced by the company, the court found, or rather was of the opinion, that) at the time the notes were given, the deceased “ was incapable of doing any business, for the reason that his-mental faculties had given way, from having had several strokes of paralysis.” The notes were, therefore, disallowed. Upon objection being made, this transcript was excluded, to which plaintiff in error excepted. It may be a question whether that proceeding could be treated as such an adjudication as to deprive the Aultman & Taylor Company of their right to foreclose the mortgage, in case there was an actual indebtedness. However that might be, in our view of the case we think the offered evidence-was immaterial, and properly excluded. The title which plaintiff in error had -warranted, by his sale to defendant-in error, was directly attacked by a chattel mortgage, duly filed and of record in the office of the county clerk, existing at the time of the sale. He was notified of (he proceeding by which the conditional title created by the mortgage would become absolute as against his vendee. Upon-being required to protect bis title, be declined to do so,, and also declined to become liable for the expenses of the-necessary litigation, if conducted by plaintiff in error. By this course be became liable to plaintiff in error for the-value of the property conveyed, should the title fail, or for the necessary expense incurred in defending that title,, should such defense be successful. Defendant in error had: the right to assume that the title had failed, and look to. plaintiff in error for indemnity. 3 Parsons on Contracts, 7th edition, 213. 2 Schouler on Personal Property, 589. Burt v. Dewey, 40 N. Y., 283.

Finding no error in the record, the judgment of the-district court is affirmed.

Judgment aeexrmed.

The other judges concur.