Home Savings Bank of Des Moines v. Woodruff

OPINION OF THE COURT. ABBOTT, J. 1 The appellants', the defendants in the trial court call in question the propriety of the action of that court in refusing to allow an amendment to their answer denying the execution of the mortgage in question, on motion made after a jury had been empanelled and a great part of the evidence for the plaintiff was in. The attornej's for the defendants, in support of the motion, said that they did not know until that morning, the authority for the execution of the mortgage was denied. The statement in the brief for the appellants goes somewhat beyond that in the motion itself, which does not show how they had then obtained the information on .which it was based. But, accepting the statement of the brief, that the Walkers were non-residents and that the defendants did not know the real facts until the arrival of one of them at court that morning to testify, it would seem to have been practicable to have learned the facts by the correspondence, through which presumably the defendants secured the attendance of the witness Walker. If the motion had been allowed, it would have been necessary in justicé to the plaintiff, as the court suggested, to continue the ease to another term, at expense to the county, and inconvenience, if no more, to those interested in the case. The request for a continuance was, as <>ppel-lynts admit, addressed to the discretion of the court, and we think it was properly denied. As the execution of the notes and mortgage in question was not denied, no proof of execution was necessary. 2 Considering next the contention of the appellants that the pleadings of the plaintiff failed to allege, and its evidence to show ownership either in itself or the Walkers, the mortgagors of the cattle in question, -we think it not ■well founded for the reason that it is inconsistent with and opposed to the position taken by the defendants by their pleadings, and at the trial. They did not deny the distinct allegation of the plaintiff that .they had seized and sold a part of the mortgaged cattle on execu-cution as the property of the Walkers. They justified a renewal of the credit the defendant bank had given the Walkers, on the ground that the mortgage had apparently expired, leaving the cattle covered by it open to the claims of general creditors. No question appears to have been made of the ownership of the cattle until after verdict, on motion for a new trial. It cannot be said that there was nothing to call the attention of the defendants to the matter, as the copy of the mortgage set up in the complaint showed that the Walkers distinctly represented in it that they were the owners of the cattle. “An admission made in open court, or in the course of pleading, whether in express terms or by omitting to traverse what has been before alleged, must be taken as conclusive for all purposes of the case.” The defendants cannot be permitted, especially after verdict thus to “mend their hold.” Railway Co. v. McCarthy, 96 U. S. 258, 267. 3 Coming now to the alleged invalidity of the attempted renewal of the mortgage as against the appellants, we find the questions presented by no means free from difficulties-Secs. 2362 and 2363 Compiled Laws, 1897. Dealing first with the objection that the affidavit was invalid because it did not appear that C. T. McCoun, by whom it purports to have been made, had authority to make it, we hold that, as there was evidence'that he was at the time the manag- or of the mortgagee corporation, and about that time its president, that it adopted and was claiming under the affidavit of renewal — the court was warranted, in the absence of evidence to the contrary, as regards that objection, in giving the jury an instruction to find for the plaintiff. Lathorp v. Blake, 23 N. H. 46; Toronto Bank v. McDougall, 15 U. C. C. P. 475. 4 The appellants claim that the Barse Livestock Commission Company was not at the time of the alleged renewal the mortgagee entitled to make such renewal, and that it should have been made by the plaintiff in this cause, the Home Savings Bank of Des Moines, Iowa, which had become the endorsee and owner of the several notes secured by the mortgage in succession, and the owner, as they say of the mortgage itself. The plaintiff, we think, had become at most no more than the equitable owner of the mortgage. It did not appear tliat it was the owner of record, or the assignee, unless by the indorsement to it of the note. The Barse Company, continued to hold the legal title, although it may have held it in trust for the plaintiff. It was liable as indorser oh the mortgage notes, which had been transferred to the plaintiff, and it was expressly provided in the mortgage that under such circumstances, it should retain the right of security by the mortgage, and the concurrent right, at least, to foreclose it in case of default. Under these circumstances it was a proper party, and perhaps the only party, to make the affidavit of renewal. Did' the affidavit sufficiently state the interest of the mortgagee ? The appellants contend that it did not. It gave the face amount of the note then secured by the mortgage, including nothing for interest, although ac the time when the affidavit was made the accrued interest was a little more than $400. No interest was due, however, and the .affidavit did not purport to _include interest, but naming the amount which, as it stated, the mortgage was originally given to secure, added, “of which sum” there is yet due and unpaid the sum of $11,174.85, which was the amount of the last note given in renewal. The meaning of the statute providing for renewal is by no means clear on the point in question, as counsel for the appellants must have found, since, at the trial, they asked for an instruction to the jury to the effect that the amount should have been computed as of the date of filing the affidavit, and in their brief claimed that it should have been what was due when the filing was required to be made by sec. 2362. The language of the statute favors the latter construction, and to that the affidavit conformed, while at the same time it was not untrue if held to relate to the time of filing. In that particular it could not have misled a creditor to his harm, if he examined the record of the mortgage itself, and substantial correctness in such a statement is all that is required. Vol. 6, Enc. of L. & Pr. 1093. Patterson v. Gillies, Sheriff, etc., 64 Barb. N. Y. 563. The law, too, Sec. 2366, imposes a substantial penalty on a mortgagee who fails to make and record a discharge of his mortgage when the debt secured by it has been paid, and the lack of such a record was meant to and should serve as a warning to creditors of the mortgagor. 5 But the appellants claim further, that as the defendant bank, had obtained judgment against the Walkers before the affidavit of renewal was filed, although the execution under which the levy was made was issued after that time, the renewal was invalid as against them. There can be no doubt that Sec. 2362, which requires renewal within thirty days of the end of each year of the life of a chattel mortgage is supplemented and modified by section 2363, which provides that an affidavit of renewal recorded later shall be as effectual as if recorded within the limit prescribed except as against purchasers, mortgagees whose mortgages are of earlier record, and one who has before the record “obtained a lien in good faith” on the mortgaged property. In this Territory a judgment is not a lien on personal property. Crenshaw v. Delgado, 1 N. M. 376; Walcott v. Ashenfelter, 5 N. M. 442. The defendant bank was, therefore, not within the exception of sec. 2363, and the seizure of the cattle in question under the execution in its favor was unlawful. 6 We have treated all the errors assigned by the appellants and discussed in their brief as being open for decision here, but on the authority of Bartlett v. Magoon, 157 U. S. 154, applied in the well considered case of Empire State Cattle Co. v. A. T. & S. F. Ry. Co., 147 Fed. Rep. 457, it would seem that by moving the trial court to direct a verdict for the defendants, a like motion having been made in behalf of the plaintiff for the direction of a verdict in its favor, they, in effect, waived .the right to go- to the jury on any question of fact, or in any other way. The judgment of the District Court is affirmed.