Butte Hardware Co. v. Sullivan

| Mont. | Jan 15, 1888

McLeary, J.

The only question involved in this ease is the validity of a certain chattel mortgage executed by James Maxwell and William G. Price to William L. Hoge, M. B. Brownlee, F. E. Sargeant, R. C. Chambers, and Marcus Daly, upon certain property which was after-wards attached at the suit of the plaintiff, the Butte Hardware Company, and sold by the sheriff under the provisions of the chattel mortgage. The court below held the mortgage void as to the plaintiff in this case, on account of defects in the affidavit attached thereto. The affidavit reads as follows: —

“ Territory of Montana, County of Silver Bow, ss.

“Malcolm B. Brownlee, William G. Price, and James Maxwell, the parties to the foregoing instrument, being duly sworn, each for himself says that the said instrument is made in good faith to secure the amount named therein, and without any design to hinder or delay the creditors of the mortgagor.

“ W. G. Price.

“ Jas. A. Maxwell.

“ Malcolm B. Brownlee.

“ Subscribed and sworn to before me this eighth day January, A. D. 1885.

[County Seal.] “ H. S. Clark, County Clerk.

“By Will L. Clark, Deputy.”

It is enacted by the statutes of Montana that, where personal" property mortgaged remains in the hands of the mortgagor, it shall “ be accompanied by an affidavit of all the parties thereto, or in case any party is absent, an affidavit of those present, and of the agent or attorney of such absent party, that the same is made in good faith to secure the amount named therein, and without any design to hinder or delay the creditors of the mortgagor, and be acknowledged and filed as hereinafter provided.” Comp. Stats. Mont., sec. 1538, p. 1068.

The question, then, is, whether or not the affidavit to the chattel mortgage complies with the law as laid down in the statute of this territory, as above quoted. It will be observed, by reference to the chattel mortgage set ov.t in the transcript, that the parties thereto are described as “William G. Price and James A. Maxwell, partners under the firm name of Maxwell & Price, parties of the first part, and William L. Hoge, Malcolm B. Brownlee, Francis E. Sargeant, Marcus Daly, and R. C. Chambers, partners under the firm name of Hoge, Brownlee, & Co., parties of the second part.” It is contended by the appellants that this recital of the parties is the same as if it had been stated that the firm of Maxwell & Price had made the chattel mortgage to the firm of Hoge, Brownlee, & Co.; but the respondent contends that the recital of the firm name is mere descriptio personarum, and that the mortgage was really made between the individuals composing the tw'O different firms. We clearly think that the position of the respondent in this regard is correct. It was the individuals, and not the firms, who became parties to the chattel mortgage.

Taking this view' of the instrument in regard to the parties, it is hardly necessary to notice the position taken by the appellants that the affidavit should be construed in connection with the mortgage itself. But even if the mortgage had been made between the firms of Maxwell & Price on the one hand, and Hoge, Browmlee, & 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. Leopold v. Silverman, ante, p. 226 (decided at this term of the court); Nesbit v. Worts, 37 Ohio St. 382. A defective statement contained in the affidavit could not be cured by allegations in the mortgage, unless reference is made to the mortgage in the affidavit. Blandy v. Benedict, 42 Ohio St. 298. There is no reference to any allegations of the mortgage in this affidavit which could cure the defects therein, if any there be.

Then let us examine the affidavit itself and see whether it is sufficient. We are reminded that this statute concerning chattel mortgages is in derogation of the common law, and for that reason should be strictly construed. Gassner v. Patterson, 23 Cal. 301; Porter v. Dement, 35 Ill. 479. The statute requires the affidavit of “ all the parties ” to the mortgage, or in case that “ any party ” is absent, the affidavit of the agent or attorney of the absent party. To give the construction contended for by the appellants would be equivalent to saying that the legislature meant both parties instead of all, and either of the parties instead of any. We do not feel inclined thus to enlarge a statute of this kind; and even if it were allowable for one of the mortgagees to make the affidavit in behalf of himself and all the rest, still, in this case, Brownlee did not do so. But it is expressly alleged in the affidavit that the affiants make the affidavit each for himself; hence, as to the other mortgagees, there is no affidavit as required by the statute.

The affidavit in this case does not comply with the statute, for the reason that it is made by one only of five mortgagees. For this reason, we must hold that the mortgage was void as to the plaintiff in this case; and there being no error in the judgment, the same is affirmed.

Judgment affirmed.

McConnell, C. J., and Bach, J., concur.