Argument for Plaintiff in Error.

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defendant claimed under the mortgage dated June 27, 1900, a pretended release of which had been filed as already stated, but after the assignment to defendant.

Upon these facts, as found by the Supreme Court of Oklahoma, judgment was rendered for the defendant in error.

Mr. Silas H. Strawn, with whom Mr. Frederick S. Winston, Mr. John Barton Payne, Mr. Ralph M. Shaw, Mr. Blackburn Esterline and Mr. Earle W. Evans were on the brief, for plaintiff in error:

The failure of the Geneseo Bank to take and record an assignment of the chattel mortgage left it within the power of the commission company to release the same of record. The Geneseo Bank should abide by the consequences of its negligence and sustain the loss, as it is the law that when one of two innocent parties must suffer, the loss should be borne by him through whose negligence it was brought about. Dassler's Stat. of Kansas, § 4234, par. 19; § 4241, par. 26, app.; Lewis v. Kirk, 28 Kansas, 356; Thomas v. Reynolds, 29 Kansas, 217; Parkhurst v. First Nat. Bank, 35 Pac. Rep. 1116; Williams v. Jackson, 107 U. S. 478; Swasey v. Emerson et al., 46 N. E. Rep. 426; Ogle v. Turpin, 102 Illinois, 148; Mann v. Jummel, 183 Illinois, 533; Lennartz v. Quilty, 191 Illinois, 174; Bowling v. Cook, 39 Iowa, 200; Rand, Ex'r, v. Barrett, 24 N. W. Rep. 530; Jenks v. Shaw, 68 N. W. Rep. 900; Purdy v. Huntington, 42 N. Y. 339; Van Keuren v. Corkins, 66 N. Y. 79; Clark v. Mackin, 95 N. Y. 345; Porter v. Ourada, 71 N. W. Rep. 52; Conn. Mutual Life Ins. Co. v. Talbot, 113 Indiana, 373; Baugher v. Woolen, 45 N. E. Rep. 94; Ayers v. Hays, 60 Indiana, 455; Morris v. Beecher, 45 N. W. Rep. 696; Pickford v. Peebles, 63 N. W. Rep. 779; Banking Co. v. Woodruff, 2 N. J. Eq. 117; Ferguson v. Glassford et al., 35 N. W. Rep. 820; Jones on Mort., §§ 481, 791, 820; Cobbey on Chattel Mort., § 648; Townsend v. Little, 109 U. S. 504.

The execution, filing and recording of the release of the chattel mortgage by the commission company, in whom the

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Argument for Defendant in Error.

record title to the cattle stood, was a notice to all the world that the debt secured by the mortgage had been paid and that the cattle were cleared of the lien. Dassler's Stat. of Kansas, § 4251, par. 36; § 4221, par. 6; § 4224, par. 9; § 4249, par. 34; § 4222, par. 7 (app.); Carpenter v. Longan, 16 Wall. 271, citing Pierce v. Faunce, 47 Maine, 513; Drum-Flato Com'n Co. v. Barnard, 66 Kansas, 568.

Mr. James S. Botsford, with whom Mr. Buckner F. Deatherage and Mr. Odus G. Young were on the brief for defendant in

error:

This case should have been brought to this court by appeal and not by writ of error, and the writ of error should be dismissed. Stringfellow v. Cain, 99 U. S. 610; Davis v. Fredericks, 104 U. S. 618; Neslin v. Wells, 104 U. S. 428; Hecht v. Boughton, 105 U. S. 235; United States v. Railroad Co., 105 U. S. 263; Gray v. Howe, 108 U. S. 12; Story v. Black, 119 U. S. 235; Idaho Land Co. v. Bradbury, 132 U. S. 509, 513; Gregory Mining Co. v. Starr, 141 U. S. 222; San Pedro Co. v. United States, 145 U. S. 130; Mining Co. v. Machine Co., 151 U. S. 447; Bonnifield v. Price, 154 U. S. 672; Hawes v. Mining Co., 160 U. S. 303; Grayson v. Lynch, 163 U. S. 468; Young v. Amy, 171 U. S. 179; Marshall v. Burtis, 172 U. S. 630; Cohn v. Daly, 174 U. S. 539.

Even if this case were here on appeal instead of by writ of error, this court is without jurisdiction to consider the case, because there is no finding of facts in the nature of a special verdict by either the Supreme Court of Oklahoma or the District Court of Woodward County, Oklahoma. This is necessary to give this court jurisdiction. The statement of facts in the opinion of the Oklahoma Supreme Court on the first hearing does not constitute a finding of facts in the nature of a special verdict. Dickinson v. Bank, 16 Wall. 250; Lahner v. Dickson, 148 U. S. 71, 74; Saltonstall v. Birtwell, 150 U. S. 417; Stone v. United States, 164 U. S. 380; Kentucky Life Ins. Co. v. Hamilton, 63 Fed. Rep. 93; Minchen v. Hart, 72 Fed. Rep. 294;

Argument for Defendant in Error.

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National Masonic Ass'n v. Sparks, 83 Fed. Rep. 225; Mutual Reserve Ass'n v. DuBois, 85 Fed. Rep. 586.

On the facts shown by the record in this case and recited in our statement of facts, the Chicago Bank was not a subsequent purchaser bona fide for value without notice of its notes and mortgages. 1 Ency. Plead. & Prac., p. 880; Boone v. Childs, 10 Pet. 177, 211; Vol. 2 Pomeroy Eq. Jurisp., 2d ed., § 784; Holdsworth v. Shannon, 113 Missouri, 508, 524; Ins. Co. v. Smith, 117 Missouri, 261, 293.

It is conceded that the Geneseo Bank had no actual knowledge of the filing of the release or of the filing of the mortgage under which the Chicago Bank claims. That release and the mortgage of the Chicago Bank were filed and recorded months after the filing and recording of the mortgage of the Geneseo Bank. It is well settled that a prior mortgagee is not affected with constructive notice of any instrument made and filed by his mortgagor subsequent to the filing of his mortgage. Tydings v. Pitcher, 82 Missouri, 379; Meier v. Meier, 105 Missouri, 412, 433; Sensenderfer v. Kemp, 83 Missouri, 582; Ford v. Church Ass'n, 120 Missouri, 498, 516; 2 Jones on Mort., $ 1624.

The general principle applicable to the registry laws of the different States upon the point of notice is that the registering of instruments is notice to subsequent purchasers and encumbrancers only. The filing for record of the unauthorized and void release of the mortgage held by the Geneseo Bank and the filing for record of the mortgage held by the Chicago Bank were, therefore, not notice to the Geneseo Bank which held under a prior recorded mortgage. Ackerman v. Hennicker, 85 N. Y. 43, 50; Gen. Stat., Kansas, 1899, Dassler's Comp., § 4060, p. 842; Rowen v. Mfg. Co., 29 Connecticut, 282, 325; Schmidt v. Zahrndt, 148 Indiana, 447; Tapia v. Deamartini, 77 California, 383; Nelson v. Boyce, 7 J. J. Mar. (Ky.) 401; Ward v. Cooke, 17 N. J. Eq. 93, 99; Shirras v. Craig, 7 Cranch, 34, 51; Trust Co. v. Iron Works, 51 N. J. Eq. 605; Summers v. Roos, 42 Wisconsin, 778; Witzzinski v. Everman, 51 Mississippi,

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Argument for Defendant in Error.

841; George v. Wood, 9 Allen, 80; McDaniels v. Cohn, 16 Vermont, 300, 306; Seymour v. Darrow, 31 Vermont, 122, 134.

While the real estate mortgage laws of Kansas contain ample provisions for the assignment of a real estate note and mortgage, no provision has ever been enacted authorizing or permitting the making and recording of an assignment of a chattel mortgage, and there has been no law at any time in that State which authorized or permitted the Geneseo Bank to obtain and record an assignment of its chattel mortgage. Dassler's Statutes of Kansas, 1899, pp. 842-845, §§ 4060-4078. For statutes of Kansas, relating to real estate mortgages containing the provision authorizing the filing and recording of assignments of real estate mortgages, see pp. 837-842. Where there is no law authorizing the holder of a negotiable note secured by a mortgage to put on the record an assignment of the mortgage, the subsequent release of that mortgage by the original mortgagee and the subsequent conveyance or mortgage by the mortgagor to a third party are unavailing as against the holder of the first mortgage note. Carpenter v. Langan, 16 Wall. 271; Burhans v. Hutcheson, 25 Kansas, 625; Insurance Co. v. Huntington, 57 Kansas, 744; Bronson v. Ashlock, 7 Kansas App. 255–259; Swift v. Smith, 102 U. S. 442; Railway Co. v. Bank, 136 U. S. 283; Jones on Chattel Mort., § 662 (a), 633; Biggerstaff v. Marstin, 161 Massachusetts, 101; Watson v. Wyman, 161 Massachusetts, 106; Mulcahy v. Fenwick, 161 Massachusetts, 164; Hoffman v. Boteler, 87 Mo. App. 316; Brooke v. Struthers, 68 N. W. Rep. 272; Lee v. Clark, 89 Missouri, 553; Hagerman v. Sutton, 91 Missouri, 519, 532; Swift v. Bank of Washington, 104 Fed. Rep. 643; Cummings v. Hurd, 49 Mo. App. 139; Walter v. Logan, 63 Kansas, 193; 20 Am. & Eng. Enc. Law, 2d ed., 1045, 1046; Robinson v. Campbell, 60 Kansas, 60; De Laurel v. Kemper, 9 Mo. App. 77; Lakeman v. Roberts, 9 Mo. App. 179; Bank v. Buck, 71 Vermont, 190; Parker v. Randolph, 5 S. D. 54; Williams v. Paysinger, 15 S. C. 171; Black v. Reno, 59 Fed. Rep. 917; Brewer v. Atkeison, 121 Ala

Argument for Defendant in Error.

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bama, 410; Roberts v. Halstead, 9 Pa. St. 32; Anderson v. Karaider, 52 Nebraska, 171; Kelon v. Smith, 97 Illinois, 156; Stiger v. Bent, 111 Illinois, 329; Preston v. Morris, 2 Iowa, 549; Martindale v. Burch, 57 Iowa, 291; Tandercosk v. Baker, 48 Iowa, 199; Gordon v. Mulhore, 13 Wisconsin, 22; Demoth v. Bank, 85 Maryland, 315; Laping v. Duffy, 47 Indiana, 51; Dixon v. Hinter, 57 Indiana, 278; Reeves v. Hayes, 95 Indiana, 521.

Section 4246 of the Chattel Mortgage Law of Kansas, Dassler's Stat., 1901, p. 896, provides that every holder of a mortgage may keep his mortgage alive by filing an affidavit during the last thirty days of the year following the recording of his mortgage, and the Chicago Bank having taken its mortgage within the year and before the time had arrived when the Geneseo Bank could file the affidavit contemplated by that provision, is not a subsequent purchaser or mortgagee in good faith. Meech v. Patchen, 14 N. Y. 71; Howard v. Nat'l Bank, 44 Kansas, 549; Bank v. Bank, 46 Kansas, 376.

The Chattel Mortgage Law of Kansas, in all its provisions, recognizes the transferee of a negotiable note secured by a chattel mortgage as the "assignee," where the word "assignee" is used in that statute. Secs. 4068, 4069, p. 844, of Dassler's Kans. Stat., 1899.

After the original mortgagee of a chattel mortgage indorses and transfers the negotiable note secured by the mortgage, he has no beneficial interest in the mortgage and cannot maintain an action of replevin or trover in his own name, but such action must be brought by the transferee of the negotiable promissory note as the real holder and owner of the note and mortgage and therefore as being the "assignee" within the meaning of the Kansas chattel mortgage statute. Bohart v. Buckington, 62 Kansas, 658; Wiscum v. Huberly, 51 Kansas, 580.

The release of the mortgage of the Geneseo Bank was void because the same was not acknowledged. It was improperly recorded for that reason. The contentions of defendant in