Baxter v. Smith

2 Wash. Terr. 97 | Wash. Terr. | 1882

Opinion by

Hoyt, Associate Justice.

A large number of suits were pending in the Court below against the firm of Kerns Brothers and certain rafts of logs owned by them, a part of said logs being marked “ K.,” and the rest “ I. K.” All of said suits were consolidated by consent, and adjudication had, establishing the order in which the claims of the several plaintiffs should attach to the fund in the Registry of the Court, which had been derived from a sale of said logg.

Baxter, the appellant herein, claimed by virtue of a chattel mortgage duly executed, and covering that portion of said logs marked “I. K.,” and he prosecutes this appeal to reverse that portion of the decree entered below, which postponed his claim to those of Coriel, Bush, and Monroe, who claimed as lienors under the lien law of the territory, and Smith & Merwin and McCabe, who were attaching creditors. It is conceded that, as to the claims of said lienors, the action of the Court below was right, if the “ lien notices,” introduced in evidence to support said claims, were sufficient; but it is contended that said notices are void, in that there is no sufficient statement of the demand and of the amount due thereon after deducting set-offs.

We have carefully examined said notices, and as to those of Bush and Monroe, we think that they clearly show, when we construe the statement of the demand as a whole, not only what amount is now due, but also the amount of the entire claim before offsets were deducted; and that therefore these two notices are not within the rule established by the case of Wheeler vs. Port Blakely Mill Company, decided by this Court at its last term, and that they are sufficient. As to the notice of Coriel’s lien, there is greater difficulty ; but in view of the fact that this was a lien for timber, andtliat such a lien attaches upon the identical timber cut, and that under the contract set out in this notice, the sale of each log of timber can be considered as a separate contract, for which a lien to the amount to which said log would come, at the agreed price per thousand, would attach, we are of the opinion that this notice also was sufficient, and that the action of the Court in giving all these claims priority over appellant’s mortgage was proper, and should not be disturbed.

As to the question of priority as between said appellant and said attaching creditors, it is conceded that said mortgage was executed before the attachment of the logs by either of said creditors ; it is also conceded that before the levying of his attachment, McCabe had actual notice of the appellant’s said mortgage; but it is not claimed that Smith & Merwin had any such notice, nor is it claimed that there was any pi'oof in the ‘ case showing that said mortgage had ever been recorded.

In each of the attachment suits, the bond required to be given before the writ issues was defective, in that the sureties therein did not justify as to their responsibility; and it is claimed by appellant that such defect rendered said bonds void; and that therefore the writs of attachment were issued without authority, and all proceedings thereunder of no effect. But we think that if appellant is in a situation to raise any question as to said bonds, which we do not now decide, still the defect complained of was a mere irregularity which could have been cured, and that therefore it did not render the proceedings under said writs void.

As said attachments were valid as to said appellant, and levy thereunder made before said mortgage was recorded, it follows that the claim of Smith & Merwin was properly given priority, and that the claim under said mortgage must also be postponed to that of McCabe, unless the fact that he had actual notice of said mortgage had the effect to subject the attachment thereafter made by him to the claim thereunder. Did such notice have such an effect ?

The language of the statute, the construction of which must decide this question, is as follows : “ A mortgage of personal property is void as against creditors of the mortgagor, or subsequent purchasers or incumbrancers of the property for value and in good faith, unless * * * it is recorded "as required by law.” And a fair interpretation thereof will lead to the conclusion that the legislature intended, therefore, to provide that, as to creditors, an unrecorded mortgage on personal property should be absolutely void, and that as to subsequent purchasers and incumbrancers, it should be void if they had paid value and acted in good faith. In fact, this is not only the most natural construction, but as the words “for value and in good-faith ” seem to be conjoined, it is the only one that will make any sense at all, if we are to give force to each word used.

The notice to McCabe, then, of appellant’s mortgage was of no effect, and his claim by attachment was prior to said mortgage.

We find no error in the record, and the decree entered in the Court below must be affirmed, with costs.

Let the cause be remanded to the District Court, with instructions that said decree should be carried into effect.