White v. Grounds

PHELPS, J. This action was commenced in the district -court of Adair county when plaintiff, who is plaintiff in error here, filed his petition -praying for judgment on a promissory note. When the issues were joined and the case called for trial plaintiff offered in evidence his note and the chattel mortgage given to secure the payment of the note. Objection to its admission was made by the defendant upon the grounds that the note had not been registered with the county treasurer and the tax paid as provided by section 9608, Comp. Stats. 1921, and that it was, therefore, under section 9613, Comp. Stats. 1921, not admissible m evidence. The court sustained the objection, and plaintiff having rested his case, the court instructed the jury to return .a verdict ior defendant, upon which verdict judgment was rendered, to reverse which plaintiff prosecutes this appeal. The sole question presented by the appeal is whether the court erred in sustaining the objection -to the introduction of the note and mortgage in evidence. It is the contention of plaintiff, and he introduced evidence to uphold such contention, that he -was a resident of the state of Arkansas, and that according to the rule laid down by this court in Pappas v. Guaranty Securities Co., 92 Okla. 25, 217 Pac. 474, and McIntosh v. Advance Rumely Thresher Co., 117 Okla. 248, 246 Pac. 403, the note was admissible in evidence even though the tax had not been paid. It is the contention of defendant, however, and -this contention seems to be supported by the authorities above cited, that it is not a question as to where the payee of the note resides, but it is a question of where the -situs of the property is, and that if the actual or -constructive situs of the note is within the state, the above-cited provisions of the statute apply. Counsel for defendant in error make the statement in their brief that the situs of this note had always been at Stilwell, Adair county, Okla., claiming that the note was executed at Stilwell and provided upon its face that it should be paid at the bank at Stilwell, and was left at said bank for collection, and that partial payments had been made on the note at that place, and that a number of the parties for whom -plaintiff in error was trustee were residents of that place. If this state of facts were true it would indicate very strongly that defendant’s contention as to the situs of the note is correct, but, unfortunately for them, we have nothing in the record bearing out that statement. The statement -of facts in Pappas v. Guaranty Co. and McIntosh v. Advance-Rumely *172 Thresher Co., supra, show that while the notes in question there were executed in the state, yet, upon their execution they were forwarded to nonresident owneijs and only sent back to- the state when due for collection, and this court very properly held that the situs of the notes not being in the state, the owners thereof were not required to pay the tax as provided by section 9608, Comp. Stats. 1921, as a condition precedent to offering them in evidence. In the .instant case, the trial court apparently took the view that before the note could be admitted in evidence, the plaintiff must first prove that it had been registered and the tax paid. We quote from the trial court’s remarks when motion for new trial was overruled, as follows: “There is no testimony offered or proof shewing that the note was registered and the taxes paid according to the provisions of the statute, and this was a fact to be proved as a condition precedent to the introduction of the note as evidence. * * * Even if this note had been introduced in testimony, and admitted, it would prove a state of facts that precludes a recovery under this law.” Since, doubtless, the note on its face failed to disclose its registration and the payment of the tax, it was incumbent upon the plaintiff to prove a state of facts which would bring the note within the rule laid down in the authorities above cited. He apparently started in to do this and prove that the plaintiff, who it appears was acting only as trustee for the real owners of the note, was a nonresident of the state; he then attempted to show to whom the note belonged, and from the questions asked -the witness, we are justified in the assumption that it was his intention to attempt to prove a statement of facts relieving him on the payment of the tax, which he should have been allowed to do, but to all such questions asked objections were made and sustained. In this we think the trial court erred. The judgment of the trial court is reversed, and the cause remanded, with directions to grant a new trial. NICHOLSON, C. J.. BRANSON, V. O. J., and MASON, LESTER, HUNT, CLARK, and RILEY, JJ., concur.