Baker v. Power

7 Mont. 326 | Mont. | 1888

Galbraith, J.

This was an action brought by the appellants, who were the mortgagees of one Clarke, to recover the value of certain property included in the mortgage, alleged to have been seized upon execution by the respondent, McDevitt, as sheriff, at the instance of his co-respondents, and by him converted to their use.

The only question necessary for our consideration in this case is as to the validity of the affidavit made to the mortgage. If this is defective, as not being the affidavit required by the statute in relation to this subject, the mortgage itself is void as to the respondents. The affidavit to the mortgage is substantially the same as that in- the case of Butte Hardware Co. v. Sullivan, ante, p. 307. The only distinction between that case and the one under consideration is, that in the former the mortgage was made to the individuals constituting the partnership, and describing them as partners under their firm name, while in the latter it is made only to the firm, in the firm name, viz., I. G. Baker & Co. The name of the person who, it is claimed, made and signed the affidavit, in behalf of the firm of I. G. Baker & Co. is Charles E. Conrad. There is nothing in the affidavit and nothing in the mortgage, if recourse could be had thereto for explanation, to indicate that Conrad was a member of the firm of I. G. Baker & Co., or that the affidavit was made on behalf of the firm. The affidavit in this case is more defective, and subject to more objection, than the one in the case above cited; for it does not appear therefrom that the affidavit was signed by the mortgagees, or any of them, or by any one in their behalf. In the case above cited it was held that extrinsic evidence cannot he invoked to support or explain the affidavit. The language of the court in that case, in relation to this subject, is as follows: “But even if the mortgage had been made between the firms of Maxwell & Price on the one hand, and Hoge, Brownlee, & Co. on the other, still we could not go beyond the affidavit, and look to the mortgage itself to support or explain the affidavit, unless the mortgage had been referred to in the affidavit. The affidavit must stand of its own strength, or fall of its own weakness.” See also Leopold v. Silverman, ante, p. 266, also decided at this term of court. The principles enumerated in the foregoing cases decided at this term of court are applicable to the case at bar, so far as the affidavit to the mortgage is concerned, and are decisive of the question presented.

The judgment is affirmed, with costs.

Judgment affirmed.

McLeary, J., and Bach, J., concur.