The appellant, Garner, and one Brown, white men, and citizens of the United States, resided in the Indian Territory. On the 19th of January, 1886, Brown there executed a mortgage to Garner, whereby he conveyed to him certain chattels, including the horse and wagon in controversy, as security for a debt.
The mortgage provided that Garner should have possession and control of the mortgaged chattels. They were accordingly delivered to him and remained in his sole possession for more than a month, when Brown borrowed them to use in hauling wood. He used them during ten days, but at night returned them to Garner’s barn. On the 9th of April following, Brown borrowed them to make a trip to Fort Smith, and .after his arrival there they were seized under an attachment against his property. Garner appeared in the attachment suit, and filed an interplea, claiming them under his mortgage. There was judgment against him on the interplea and he .appealed.
In determining the merits of his claim it is essential to know by what law the validity of the mortgage is to be determined.
As a rule, when rights arise in a particular country, they .are to be determined by the laws of that country, and the jparty who would avail himself of them should prove them.
l. common law: Presumption as to. The mortgage in controversy was executed in the Indian Territory. No proof was offered of the laws in force there applicable to the matter, and it was agreed between the parties , , . . that there was no local Indian law that was pertinent. Ihis absence of proof cannot be supplied by presumption. In similar cases the courts of this State will generally presume the common law to be in force in another State. Cox v. Morrow, 14 Ark., 603; Thorn v. Weatherly, 50 Ark., 243. But this presumption is indulged as to those State's only that have taken the common law as a basis of their jurisprudence. Such a presumption would not be indulged as to the laws of the States of Louisiana and Texas, because we know that their jurisprudence is founded upon a different system; the same reason forbids such a presumption as to the laws of the Indian Territory, for we know that no system of law has been adopted there. But property rights are asserted there, and their existence universally recognized. They do not depend upon the uncertain tenure of possession, but rest upon a more substantial basis. As such rights are respected there, they should be enforced when they become involved in the courts of this State.
2. Indian Territory: Right acruing in. There is no Federal law on the subject. We have no Proof of, and can indulge no presumption as to, the local laws jn force there. As the parties have invoked the aid of our courts, we must therefore apply our own law and administer justice according to its principles. Such we understand to be the practice of the Supreme Court of the United States. The Scotland, 15 Otto, 24.
3. Chattel mortgage:Possesion under: title. Under our law if a mortgagee take possession of the mortgaged chattels before any other right or lien attaches, his title under the mortgage is good against everybody, if it was previously valid between the parties, although it be not acknowledged and recorded. The delivery cures all such defects. Jones Chat. Mort., sec. 178, and cases cited; Applewhite v. Harrell Mill Co., 49 Ark., 279; Cameron v. Marvin, 26 Kan., 625; Hutton v. Arnett, 51 Ill., 198.
4. Same:Same. While the mortgaged chattels are in the custody of the mortgagee, he may lend or hire them and they continue in his possession constructively; and there is nothing in the relation which he sustains to the mortgagor that forbids to him the offices of ordinary kindness of good neighborhood. Therefore, the mortgagee may lend the .mortgaged chattels to the mortgagor for occasional, temporary use, without prejudice to his security. In a case very similar to this the Supreme Court of Vermont so ruled. Farnsworth v. Sheppard, 6 Vt., 521.
The learned Judge of the Circuit Court held that appellant’s mortgage was void for want of filing and record. But it follows from the principles herein announced, that he was mistaken in this. If the transactions of delivery and loan were had bona fide, the mortgage should be sustained.
The judgment is reversed and the cause remanded.