Opinion
No. 34491.
March 24, 1941.
1. CHATTEL MORTGAGES.
Purchase-money mortgages on truck and trailer owned by Missouri debtors and brought into Mississippi on business were prior in right to foreign attachment levied against the truck and trailer where such mortgages were duly recorded in Missouri but not in Mississippi (Code 1930, sec. 2149).
2. CHATTEL MORTGAGES.
Re-recording of mortgage on automobile will not usually be required merely because of crossing the state line in ordinary use of automobile, and thus where motor-truck mortgage is recorded in one state, occasional trips across the state line to a neighboring town in another state, on business errands, does not constitute "removal" to the other state, requiring recording of the mortgage there (Code 1930, sec. 2149).
APPEAL from the circuit court of Copiah county, HON. J.F. GUYNES, Judge.
M.S. McNeil, of Hazlehurst, and L.E. Grice, of Crystal Springs, for appellant.
Section 2149 of the Mississippi Code of 1930 applies to mortgaged chattels attached in this state even though such property has not acquired a situs in this state.
Vines v. Sparks, 148 Miss. 219, 114 So. 322; Devant v. Pecou, 128 So. 700; 5 R.C.L. 987; Wyse v. Dandridge, 35 Miss. 672; Hernandez v. Aaron, 73 Miss. 435; Millsaps v. Tate, 75 Miss. 150; Corbett v. Littlefield, 84 Mich. 30, 47 N.W. 581, 11 L.R.A. 951; Montgomery v. Wright, 8 Mich. 143; Allison v. Teeters, 176 Mich. 216, 142 N.W. 340; Vining v. Millar, 116 Mich. 144, 74 N.W. 459; Best v. Farmers', etc., Bank (Tex.), 141 S.W. 334; Crosby v. Huston, 1 Tex. 203; Farmer v. Evans, 111 Tex. 283, 233 S.W. 101; Blythe v. Crump, 28 Tex. Civ. App. 327, 66 S.W. 885; Com. Banking Corp. v. Berkowitz, 104 Pa. Super. 523, 159 A. 214, 216.
If Section 2149 of Mississippi Code of 1930 applies only to property with a situs in Mississippi, the truck and trailer attached by appellant has such a situs.
Bankers Finance Corp. v. Locke Massey Motor Co. (Tenn.), 91 S.W. 298; Vines v. Sparks, 148 Miss. 219, 114 So. 322; Blashfield's Cyclopedia of Automobile Law and Practice, Vol. 7, p. 328; Flora v. Julesburg Motor Co., 69 Colo. 238, 193 P. 545; Forgan v. Smedal (Wis.), 234 N.W. 896; Am. Oil Co. v. Booth, 137 Miss. 404, 102 So. 262; Lee v. McConnell, 100 Miss. 839, 69 So. 706; Pickard v. Samuels, 64 Miss. 822, 2 So. 250; Hare Chase, Inc., v. Tomkinson et al. (N.J.), 129 A. 396; Johnson Oil Ref. Co. v. Oklahoma, 290 U.S. 158; Bacon v. Ill., 227 U.S. 504; Applewhite v. Ethridge (N.C.), 187 S.E. 588; C.I.T. Corp. v. Guy (Va.), 195 S.E. 659.
Henley, Jones Woodliff, of Hazlehurst, for appellees.
Appellees' chattel mortgages were superior to appellant's attachment lien because truck and trailer were not "removed into this state" so as to require foreign mortgages to be recorded in Copiah County.
Vines v. Sparks, 148 Miss. 219, 114 So. 322; Blashfield's Cyclopedia of Automobile Law and Practice, Vol. 7, p. 328; Am. Oil Co. v. Booth Lbr. Co., 137 Miss. 404, 102 So. 262; Lee v. McConnell, 100 Miss. 839, 69 So. 706; G.M.A.C. v. Schwartz (N.J.), 190 A. 625; Hare Chase, Inc., v. Tomkinson (N.J.), 129 A. 396; Endler v. Com. Credit Corp., 105 N.J.L. 474, 144 A. 582; W.H. Applewhite Co., Inc., v. Ethridge (N.C.), 187 S.E. 588; C.I.T. Corp. v. Guy et al. (Va.), 195 S.E. 659; Southerland on Stat. Const., p. 218; Richmond Standard Steel, etc., Co. v. Dininny, 105 Va. 439, 53 S.E. 961; Nelson v. Chesapeake O.R. Co., 88 Va. 971, 14 S.E. 838, 15 L.R.A. 583; 5 R.C.L. 911; McComb v. Donald's Admr., 82 Va. 903, 5 S.E. 588; Osmond-Barringer Co. v. Hey, 7 Va. Law Reg. (N.S.) 175; Craig v. Williams, 90 Va. 500,
18 S.E. 899; Exposition Arcade Corp. v. Lit Bros., 113 Va. 574, 75 S.E. 801, 34 A.L.R. 186; Seward Co. v. Miller Higdon, 106 Va. 309, 55 S.E. 681; Forgan v. Smedal, 203 Wis. 564, 234 N.W. 896; Piedmont, etc., Corp. v. Commonwealth, 146 Va. 287, 135 S.E. 673; Bankers Finance Corp. v. Locke Massey Motor Co. (Tenn.), 91 S.W. 298.
The parties to this appeal are W.H. Russum on the one hand, and the Interstate Securities Company and Fruehauf Trailer Company on the other. Russum was engaged in truck-gardening in Copiah County in this state, raising vegetables for the market. Charles P. Gans and his wife and Freeman Gans of Kansas City, Jackson County, Missouri, were engaged in the purchase of vegetables in this state and the sale thereof to their customers in Missouri. They transported the vegetables so purchased from this state to Kansas City in a truck with trailer attached. The Gans were residents of the State of Missouri, while Russum was a resident of this state. The Gans became indebted to Russum for vegetables so purchased of him, and defaulted in payment. Russum found in Copiah County the truck and trailer used by the Gans in transporting their vegetables from this State to Missouri. He thereupon sued out a foreign attachment for the debt they were due him, and had it levied on the truck and trailer. The Securities Company and the Trailer Company, the appellees, held purchase-money mortgages on the truck and trailer for indebtedness due them by the Gans. These mortgages were recorded in Jackson County, Missouri, the county in which Kansas City is located, and were prior both in date and recording to the levy of the attachment. The mortgages were not recorded in this state. In carrying on their business, the Gans sometimes had their truck and trailer in Copiah County for two or three days waiting for loads.
The question is, Which is prior in right against the truck and trailer, the attachment or the mortgages? We are of opinion that the mortgages are. Section 2149 of the Code of 1930 is in this language: "Mortgages, deeds of trust, and other liens on personal property executed out of this state shall only be binding on such property in or when removed into this state, as against creditors and bona fide purchasers without notice, from the time such mortgage, deed of trust, or other instrument, duly acknowledged or proved, or a duly certified copy of the record thereof, shall be delivered to the proper clerk in this state for record."
The governing principles are laid down in 7 Blashfield Cyclopedia of Automobile Law and Practice, Perm. Ed., Sec. 4710, p. 328, and 14 C.J.S., Chattel Mortgages, Sec. 15, p. 608. It is stated thus in the cyclopedia: "Whatever be the rule as to the necessity of re-recording a mortgage on an automobile on its removal to another state than that where the mortgage was given and recorded, such re-recording will not usually be required merely because of crossing the state line in the ordinary use of the automobile. Thus, where a motor truck mortgage is recorded in one state, occasional trips across the state line to a neighboring town in another state, on business errands, does not constitute removal to such other state, requiring recording of the mortgage there."
Vines v. Sparks et al., 148 Miss. 219, 114 So. 322, does not hold to the contrary. The Court expressly pretermitted the decision of this question. The Court said in that case in part: "Subsequently, Vines attached the truck here involved in Wilkinson county, Miss., for the payment of his debt against Sparks. The record does not show how long the truck had been in Wilkinson county, Miss., before it was attached, nor is it expressly shown whether this attached personal property was `removed into this state,' and thus had a situs here, as contemplated by the statute, supra, or was in the state temporarily, such as passing through the state. The only thing certain in this regard is that the property was attached while in this state, and that the mortgage on the truck, which had been recorded in Louisiana, was not recorded in Wilkinson county, Miss., as provided by the statute, supra, at the time the attachment was levied. Counsel seem to have carefully left that feature of the case out of their agreed statement of facts.
"In this condition of the record, we must construe the agreed facts to mean that the property involved had been under the statute, `removed into this state,' and was therefore situated here at the time it was attached in Wilkinson county.
"We thus pretermit the question as to whether or not the statute would be applicable and favorable to an attaching creditor where the personal property is only transitory, or temporarily passing through the state."
Affirmed.