Chator v. Brunswick-Balke-Collender Co. , 71 Tex. 588 ( 1888 )

Gaines, Associate Justice.

This suit was brought in the court below by the Brunswick-Balke-Oollender Company, a corporation, against J. M. Dowsing and D. O. Chaytor, to recover the amount of three promissory notes executed by Dowsing, payable to the company, and to foreclose a chattel mortgage upon certain saloon furniture alleged to be in possession of Chaytor. To the petition the defendants pleaded jointly a general denial. The judgment was for the plaintiff for the recovery of the debt, interest and attorney’s fees, as provided in the contract, and for the enforcement of the mortgage against •both defendants by a sale of the property.

The assignments of error raise the questions of the sufficiency of the proof of the execution of the mortgage to admit it in evidence, and of the sufficiency of the evidence to support a judgment of foreclosure against Chaytor.

The mortgage was made a part of the petition, and was alleged to have been executed by defendant Dowsing. There being no plea of non est factum, verified by oath, no proof of execution was necessary as to him. (Rev. Stats., art. 1365.) If it be conceded that, under the pleadings, it was incumbent upon the plaintiff to prove the execution of the instrument by Dowsing so as to enforce it against Chaytor, we think the proof was sufficiently made. It was attested by one subscribing witness, and it was shown by the declarations of Dowsing, admitted without objection, that the witness was a resident of-the State of Ohio. He was probably the agent of the plaintiff who filed the mortgage, and who, as the clerk testified, was a stranger—at least, as to him. The evidence also shows that both Dowsing and Chaytor were in the court room just before the trial began, and that they left promptly, and could not be found to give testimony as the trial progressed. A subpoena had issued for both of them on behalf of the plaintiff, and had been served upon Dowsing. Under these circumstances we think the court was warranted in concluding prima facie that the subscribing witness was beyond the jurisdiction of the court*, and in admitting proof of Dowsing’s signature to the mortgage by persons who knew his hand writing. Two of the witnesses swore positively to his signature, after having properly qualified themselves to testify as to the fact. There was no conflicting evidence. This was sufficient proof to admit the mortgage in evidence; and it is not important whether the evidence of Dowsing’s admissions as to its execution were properly admitted or not. The case was tried before the judge without a jury, and even if improper evidence had been admitted upon this point, it did not operate to the prejudice of the plaintiff in error.

It is also urged that the mortgage having neither been acknowledged nor proved under the statutes for the registration of deeds, was not properly recorded, and, therefore, was not notice to Chaytor. The statute for the registration of chattel mortgages prescribes that the registration may be effected by filing with the county clerk either the original or a copy of the instrument (Sayles’ Rev. Stats., art, 3190b, sec. 1), but also provides that “a copy can only be filed when the original has been acknowledged.” (Id., art. 3190b, sec. 2.) If the original is deposited it is not necessary that it Should either he acknowledged •or proved. The provision being express that the mortgage shall be authenticated in order to warrant the registration of a copy, it is to be implied that no such authentication is necessary when the original is filed. The object of registration is merely to give notice, and it was doubtless considered that an original mortgage having the mortgagor’s own genuine signature, ■would be as effectual for this purpose as if accompanied with his acknowledgment or the affidavit of a subscribing witness.

It is further claimed that the judgment is erroneous, because it was not proved upon the trial that the property was in Bowie county, where the mortgage was registered, or that Chaytor had in fact bought it subsequent to the execution of the mortgage or was setting up any claim to it. The defendants, as before remarked, pleaded only a general denial, and. it would seem, that if they proposed to defend upon the ground that- the mortgage was not recorded in the proper county, they should have apprised the plaintiff of this by pleading the fact specially. But however this may be, the mortgage recites that the mortgagor, Dowsing, is of “Texarkana and the county of Bowie and State of Texas.” This we think sufficient to show at least prima facie that the mortgagor was a resident of the State, and that the mortgage was registered in the county of his residence, as the statute requires. (2 Sayles’ Rev. Stats., art. 3190b.)

It is also complained that the judgment is erroneous because there was no proof that Chaytor purchased the property after the mortgage was executed. That he did not purchase it before, we think, is shown by the recitation in the mortgage that the notes secured by it were given for the purchase money of the property, and by the further fact that all the instruments bear the same date. The general denial interposed by defendant Chaytor puts in issue the plaintiff’s right to enforce a lien upon the property; but does it put in issue the fact that he is setting up a claim to it? It however appears in evidence that after the mortgage was executed, Dowsing told the witness Cook that he had sold the property to Chaytor for four thousand seven hundred and fifty dollars. So much of the conversation between Dowsing and this witness as admitted the execution of the mortgage was objected to by defendant Chaytor; but no objection was interposed to the statement of Dowsing that he had sold to Chaytor. This testimony, though hearsay, was before the court, and under all the circumstances was amply sufficient to warrant the finding of the judgment upon the issue of the sale to Chaytor. The testimony leaves but little doubt that both defendants absented themselves from the court room at the time of the trial to avoid giving testimony in the case. Their failure to testify affords a strong presumption that as a matter of fact there was no defense to the action on part of either. We do not think the assignments that the judge’s conclusions were without evidence, well taken. There is no error in the rulings of the court which requires a reversal of the judgment, and it is affirmed.

Affirmed.

Opinion delivered October 26, 1888.