(concurring). The opinion of the majority Is fully concurred in, but it leaves open and undetermined the question whether the consent of the mortgagee to the removal of the mortgaged property from the State where mortgaged into this State affects the question; and that question should be concluded by the holding that this State recognizes and enforces from comity the laws of Indiana. The comity of the States is the only basis for the maintenance of this action; and if this State adopts the policy of enforcing such actions, it should do so fully, and not half way. To test the determination of whether the State shall enforce liens created by other States upon whether the lienholder consented to the property coming into this State, or whether it was unlawfuly brought here, is illogical.
It is a criminal offense in this State to remove mortgaged chattels from one county to another without the consent of the mortgagee. No one can contend that the mortgage lien is lost if the mortgagee consents to its removal from one county to another; and if it is illegally removed, a fortiori the mortgage lien is not lost. If this State enforces the lien laws of Indiana by comity, it should enforce them as our own laws are enforced, and the removal from Indiana to Arkansas should not affect the question any more than the removal from one county to another. With but few exceptions the States of the Union from comity give full effect to the liens created by statute in the other .States, and it is a sound doctrine and promotive of uniformity in judicial construction. Judge Thayer, speaking for the Federal Court of Appeals for this circuit in a case arising under the Arkansas law which has been transplanted into the Indian Territory, said:. “The general consensus of judicial opinion seems to be that when personal property, which at the time is situated in a given State, is there mortgaged by the own'er, and the mortgage is duly executed and recorded in the mode required by the local law, so as to create a valid lien, the lien remains good and effectual, though the property is removed to another State, either with or without the consent of the mortgagee, and although the mortgage is not re-recorded in the State to which the removal is made. The mortgage lien is given effect, however, in the State to which the property is removed solely by virtue of the doctrine of comity.” Shapard v. Hynes, 104 Fed. Rep. 449.
Therefore the question of consent is not material unless made so by statute of the State creating the lien.
Mr. Justice Battue concurs in these views.