Chapin v. Whitsett

3 Colo. 315 | Colo. | 1877

Elbert, J.

Section 2, chapter 14, R. S. 102, provides that the justice taking the acknowledgment of a chattel mortgage “ shall certify the same in substance, as follows : this mortgage was acknowledged before me by A. B., (the mortgagor) this-day of-.”

The chattel mortgage of the plaintiff in error was excluded.at the trial in the court below, for the reason that the words “the mortgagor ” do not appear in the certificate of acknowledgment. This was error.

The words are in parenthesis, and serve only to explain and direct that the name of the mortgagor is to be inserted instead of A. B. Throughout the statutes, and in every legal form-book, wherever a form is prescribed for legal instruments or process, explanatory or directory matter is thus inserted in parenthesis, and is not of substance.

Had the importance of having the identity of the party acknowledging the instrument with the party subscribing it appear in the certificate of the justice, been present to the minds of legislators, and had it been their intention, as urged by counsel, to so prescribe, it is but fair to presume that they would have indicated it in some much more definite and certain manner, as well as. have prescribed words of certification, which would have accomplished the object sought.

It is urged, however, that it was the duty of the plaintiffs, as mortgagees, to have taken possession of the mortgaged goods, upon default in .the payment of any one of the several notes secured,, and that it was not optional with them to await the maturity of the last note before taking possession, and that, consequently, the admission of the mortgage in evidence could not have availed them. The mortgage provided that “in case default shall be made in the payment of said notes, or either of them,' according to their tenor, * * * * then it shall and may be lawful for the said parties of the second part, or assigns, to take immediate and full possession of the whole of said goods and chattels to their own use, and sell the same,” etc., etc.

This provision does not impose an obligation, but confers an option, and under it the mortgagees could take possession of the mortgaged property upon default in the payment of any note secured, or they could await the maturity of the last note, without forfeiture of their lien. Barbour et al. v. White et al., 37 Ill. 164; Cleaves v. Herbert, 61 id. 126.

The judgment is reversed with costs, and case remanded for further proceedings according to law.

Mr. Justice Wells having been of counsel did not sit in this case.

jReversed.