Streeter v. Johnson , 23 Nev. 194 ( 1896 )

The facts sufficiently appear in the opinion. Action of replevin for certain personal property described in the complaint, or for its value in the sum of $3,000, in case delivery cannot be had, to the possession of which the plaintiff claims to be entitled as mortgagee, under the following circumstances:

July 21, 1887, the Star Mining and Smelting Company, a Nevada corporation, having its principal place of business in the town of Sherwood, Eureka county, Nevada, borrowed from the plaintiff $3,000, for which it executed and delivered its promissory note, due 60 days after date. It was at the same time agreed that the company should secure the payment of the note by a mortgage upon its property. October 12, 1887, the mortgage in question was executed and delivered pursuant to that agreement, but it was dated July 21, 1887, to correspond with the date of the note. It was filed for record with the county recorder of Eureka county on October 13, 1887.

Some time in December, 1887, the defendant Sweeney, as sheriff, and the other defendants as creditors of the Star Mining Company, attached and took possession of a portion of the property described in the complaint, and it was subsequently sold under an execution issued upon a judgment obtained in that action.

In this action judgment was given for the plaintiff for a portion of the property, and defendant's appeal from the judgment, and from an order overruling a motion for new trial.

There are a number of papers, including the findings, contained in the record which has finally reached this court, which the respondent moves to strike out as not properly included in the record of appeal. They are not contained in the statement on motion for new trial, nor are they certified as having been used or referred to on the hearing of the motion, and most of them are entirely immaterial.

It has been decided so many times that the findings are not before the court, unless included in the statement for new trial, that there can now be no question upon the point, unless, as contended by appellant, the rule has been changed by Stats. 1895, 58, in the act regulating appeals. But in regard to that act, it seems only necessary to call attention to the language used in Holmes v. Iowa Mining Co.,23 Nev. 24. We then said: "It is not improper to call attention to the fact that the statute mentioned has in no wise altered the method of presenting questions to the supreme court. Wherever a motion for new trial or statement on appeal was previously necessary to their proper presentation, it is still necessary. The only difference is that, instead of having to present a transcript of the papers to be used on appeal, the originals may now be certified up."

The motion to strike out will therefore be granted.

1. A copy of the mortgage is attached to and made part of the complaint, and appellants' counsel contends that it is insufficient in several particulars, and that, therefore, the complaint does not state facts sufficient to entitle the plaintiff to a judgment for the possession of the property. The first objection is that the property is insufficiently described. Upon that point the mortgage reads as follows: "That said mortgagor mortgages to the said mortgagee all that certain personal property situated and described as follows, to wit: two work mules, one gig, one two-horse wagon, etc." (Here follows an enumeration of a large number of articles, after which the description concludes as follows:) "All of said property is at the town of Sherwood, or Union, in Union mining district, in either Elko county or Eureka county, in the state of Nevada, and on or near the boundary line between said counties. Also all other property of a personal nature belonging to said mortgagor which is situated in either of said counties." It appears that some of the property for which the plaintiff recovered judgment was not specifically described in the mortgage, and was only covered by the general clause of "all other property of a personal nature belonging to said mortgagor which is situated in either of said counties." We think, however, that this was sufficient. It would often be impossible to so describe personal property that a mere inspection of a mortgage would indicate, to one unacquainted with the circumstances surrounding the parties, what was covered by it, and, bowing to the necessity of the case, the rule has been established that it is unnecessary to do so. The fact that the description was general, instead of specific, is no valid objection of itself. (Veazie v.Somerby, 5 Allen, 280; Thurber v. Minturn, 62 How. Pr. 27.) If a description is such as to enable third parties who have examined the records, and made such inquiries as the instrument itself suggests, to identify the property covered thereby, it is sufficient. (1 Cobby, Chat. Mort., sec. 161.) Tested by these rules, this mortgage is not invalid. It covered all property of a personal nature then belonging to the company, in either of those counties. This suggested the proper inquiry. The ascertainment of the facts concerning the company's ownership of any particular article at once determined whether it was covered by the mortgage. This was sufficient.

2. The mortgage was not invalid because not recorded in Elko county. If not recorded there, it would not affect property there situated, but this would be no reason why it should also be invalid in Eureka county, where it was recorded.

3. The statute does not require that the affidavit attached to the mortgage, when made by some one in behalf of the parties, shall state that fact. The complaint alleges, and the answer does not deny, that the affidavit of G. F. Talbot was made in behalf of the mortgagee. That is all that the law requires. Other objections are suggested to the complaint, but we are of the opinion that they are not well taken, and it is unnecessary to notice them further.

4. There was no misjoinder of parties defendant, and the judgment against all of the defendants was proper. Johnson, Remington and Foley were attaching creditors of the Star Mining Company, and if they did not authorize the seizure of the property in the first instance, it is perfectly clear that they subsequently ratified it. Their agent in the management of the suit attended the execution sale, directed how the property should be sold, and bought in a portion of it for those defendants. This made them jointly liable with the sheriff for the trespass. (Freeman, Ex., 2d ed., sec. 273;Elder v. Frevert, 18 Nev. 446.)

5. There was no objection to the introduction of the mortgage in evidence. This constituted a waiver of the claim that its execution by the company had not been sufficiently proven. (Sharon v. Minnock, 6 Nev. 380; Langworthy v.Coleman, 18 Nev. 441.)

6. Nor do we think that the fact that the mortgage, although agreed upon when the note was given and the money borrowed, was not executed until after the note fell due, renders it invalid as to these defendants. It is not shown that the company's indebtedness to the defendants was incurred between those dates, and, for aught that appears, it may have wholly accrued prior to July 21, or subsequent to October 13, 1887. It is clear that the debt secured by the mortgage was an honest one, and it is neither alleged nor proven that the delay was the result of any agreement or arrangement to keep it from the knowledge of the public, and thereby give the company a credit it would not otherwise have had, nor that it had this effect. Although bearing an earlier date, and although previously agreed upon, it was not a valid mortgage until acknowledged and sworn to and delivered, which the official certificates and other evidence show was not done until October 12, the day before it was recorded. Had other creditors before that time obtained a mortgage or levied upon the property, their lien would certainly have been prior to the plaintiff's mortgage. The delay simply gave them additional opportunity to secure themselves, and we see no reason for holding that it invalidates the mortgage.

The plaintiff did not lose his lien by his failure to take possession of the property before its seizure by defendants. Our statute providing for chattel mortgages, as amended (Stats. 1887, 66), contains no requirement that the mortgagee must take possession of the property within any particular time. In that respect such a mortgage does not seem to differ from one upon real estate. In fact, the principal purpose of the amendment mentioned seems to have been to abrogate the time limitation previously existing upon such mortgages, and to assimilate them to real estate mortgages. Such a mortgage is merely security for the payment of a debt (Shoecraft v.Beard, 20 Nev. 182), and, although under the principles applicable to them, the mortgagee is entitled to the possession of the property upon default being made, there is nothing that requires him to take it at any particular time, nor that, in the absence of fraud, makes his delay in so doing fatal to his claim. Such is the conclusion announced by other courts under similar statutes, and we see no reason to doubt its correctness. (Wescoat v. Crawford, 22 S. E. Rep. 792, 801; Spraights v. Hawley, 39 N.Y. 441; Jones, Chat. Mort., sec. 369.) In Mitcham v. Schuessler, 98 Ala. 635,638, the court said: "Indulgence for an unreasonable time after the law day of a mortgage is a circumstance which the jury may consider, in connection with other facts, in determining the bona fides of a mortgage in its inception, or as to whether the secured debt has been satisfied. But if the mortgage is bona fide, and the debt secured has not been paid, no indulgence to the mortgagor, although the effect of such indulgence be to protect the debtor in the possession and enjoyment of the property, will affect the validity of the mortgage security. In such cases the only remedy of the mortgagor is to redeem, and his creditors can secure no rights." Cases where the contrary has been held, seem to have been decided under statutes differing from ours.

No errors appearing, the judgment will be affirmed. It is so ordered.