Bonner v. Stroud Brothers' Gin

Hart, J., (after stating the facts). At the outset it may be stated that all the mortgages show that the cotton was to be planted and grown in the State of Oklahoma, and, by their terms, show that the contracts which they evidence were to be performed there. Hence in construing the mortgages and in determining their priority we must be governed by the laws of the State of Oklahoma. Tallmam v. Union Loan & Trust Co., 161 Ark. 614, 256 S. W. 379; Guardian Life Insurance Co. v. Dixon, 152 Ark. 597, 240 S. W. 25; Wilson v. Todhunter, 137 Ark. 80, 207 S. W. 221; and Nelson v. Forbes & Sons, 164 Ark. 460, 261 S, W. 910. The first reliance by counsel for the plaintiff for a reversal of the judgment is that, although the two mortgages transferred to Mamie Cleaver were executed before the mortgage on the same property to the plaintiff Bonner, the acknowledgments to these two .mortgages were so defective as to render them invalid as far as the rights of third persons are concerned. The acknowledgments to the two mortgages given by Hill to the Williams Horse & Mule Company and transferred by it to Mamie Cleaver are set out in our statement of facts, and need not be repeated here. A reading of the acknowledgments copied in our statement of facts will show that they are valid under the laws of Oklahoma. The body of each mortgage is in the usual form, reciting that it is a mortgage, and is signed 'by the mortgagor. It is true that the certificate of acknowledgment is in the form of an affidavit, but the signature of the mortgagor to the mortgage is identified, and the acknowledgment to each mortgage shows that Hill stated that he was the sole and exclusive owner of all the property described in the chattel mortgage, and that every representation in the mortgage was true, and that the mortgage was executed for the purpose of securing a loan of money on the property. An acknowledgment in all essential respects the same as the one in the case at bar has been held valid by the Supreme Court of the State of Oklahoma. First National Bank of Buffalo v. Devore, 110 Okla. 283, 234 P., 734. It is next insisted that the judgment should be reversed because the description of the property in the mortgages to the Williams Horse & Mule Company, which were transferred to Mamie Cleaver, are void for uncertainty of description of the cotton mortgaged. We do not agree with counsel in this contention. In Wichita Mill & Elevator Co. v. Farmers’ State Bank, 102 Okla. 83, 226 Pac. 870, it was held that a description in a chattel mortgage which is sufficient to put a third person upon inquiry, which, when pursued, will enable him to ascertain the property intended to be included in said mortgage, is good, and parol evidence is admissible in order to show the particular property intended to be covered by the description in the mortgage. In Watson v. Pugh, 51 Ark. 218, 10 S. W. 493, it was held that a mortgage which described the property conveyed as ‘ ‘ eight bales of cotton weighing 500 pounds each, of the crop” which the mortgagor should raise in a designated locality, is not void for uncertainty, where the whole crop did not amount to eight bales. See also Jones on Chattel Mortgages, 5 ed., §§ 55 and 55a. It will be observed from our statement of facts that the mortgage of Hill to the Williams Horse & Mule Company to secure the $193 indebtedness describes the cotton as 30 acres to be planted and grown by Hill on Mamie Cleaver’s land in Poteau Bottom, LeFlore County, Oklahoma. In the mortgage to secure the $50’ indebtedness the description is 15 acres of cotton to be planted and grown by Hill on Mamie Cleaver’s farm in Poteau Bottom, LeFlore County, Oklahoma. The only element of uncertainty in the mortgage is that the mortgagor might plant and grow on Mrs. Mamie Cleaver’s farm 45 acres of cotton; in which event, no separation' having been made by the parties, it could not be ascertained what particular cotton was covered by each mortgage. According to the testimony of Mamie Cleaver, Hill planted 40 acres of cotton, but about 25 acres of it were overflowed and grew up in weeds and bushes. Hill did not work this part of his crop of cotton. He only worked 15 acres of the amount planted, and the cotton in controversy was grown on the 15 acres.- Each mortgage provides that the cotton is to be planted and grown on Mamie Cleaver’s farm. That part of it which provides that the crop is to be grown on the Mamie Cleaver farm is as much a part of the description as that part referring to the planting of the cotton. When it was shown that the entire crop of cotton thus planted-and grown and subject to the description was not more than 15 acres, the description became definite and certain; hence there was no occasion for its separation from a larger mass. The record shows that the mortgage to the plaintiff was executed on the same cotton subsequent to the execution of the two mortgages to the Williams Horse & Mule Company and transferred by it to Mamie Cleaver. The cotton obtained by Mamie Cleaver under the two mortgages held by her was not sufficient to pay the mortgage indebtedness, and it follows that the judgment of the circuit court was correct. It will therefore be affirmed.