First National Bank v. Clifton Armory Co.

CUNNINGHAM, J.

I concur in the result reached in this ease by my associates, but cannot concur in that portion of the reasoning used by them in arriving at the conclusion holding that the trial court, in the absence of preliminary proof of authority from the corporation to its officers or ‘ agents to execute the mortgage in question, the mortgage not bearing the corporate seal, was right in excluding the mortgage from consideration. The lessor is not a party, and the lessee corporation defendant does not contest the case.

The appellee L. W. Blinn Lumber Company in its answer denies the execution of the mortgage because of the absence of knowledge or information on the subject, which, of course, raises no issue. It then further answering: “Denies that its interest is inferior or subject to the lien of plaintiff’s said mortgage, or to any lien or interest of the plaintiff in or to the lots mentioned and described in the complaint; that the L.. W. Blinn Lumber Company is the owner in fee of all the property mentioned and described in plaintiff’s complaint. ...” This answer admits the mortgage and attempts to avoid its effect. The defendant thus and thereby assumed the burden of proof to establish its superior right and claim, and on this theory the proof of the execution of the mortgage ■as between the mortgagee and lumber company was immaterial, the existence of the mortgagee having been admitted in the answer. . If the defense should have been established, the mortgage was of no avail as against the lumber company; should the lumber company fail to establish its superior title in fee, as alleged, then it had no concern in the mortgage lien. The mortgage was admitted as against all the other defendants except the lumber company and should have been ad*369mitted against it. The lumber company offered no proof of its title or claim to the property in controversy, nor to the lots upon which the building is situate. The trial court should, upon that condition arising, have ordered a personal judgment against the Armory company and ordered a foreclosure of the mortgage lien as superior and prior to all claims of the defendants. I' think, however, the defendant L. W. Blinn Lumber Company was misled by the ruling of the trial court into believing such ruling excluding the mortgage from consideration as to it relieved it of offering any testimony establishing its claim, and the trial court in its judgment took the same view of the law, which was error. The situation will justify us in reversing the judgment and remanding the cause to the superior court of Greenlee county, with instructions to that court to grant the plaintiff a new • trial.

NOTE.—As to the rights of a mortgagee under a chattel mortgage as against a levying officer, see note in 96 Am. St. Rep. 689.

As to general statutory requisites for executing chattel mortgages, see note in 137 Am. St. Rep. 473.

As to the fixing of corporate seal in execution of instruments by corporation, see note in 50 Am. St. Rep. 150.

As to the tests for determining what are fixtures, see note in 105 Am. St. Rep. 646.