116 Wash. 532 | Wash. | 1921
Does a mortgagee, who has failed to file his chattel mortgage within ten days from the time of its execution, have any rights against a purchaser of the chattel whose hill of sale was given him two months subsequently to the actual filing of the chattel mortgage? An answer to this question will dispose of this appeal.
The facts are: On May 24, 1919, respondent Kilian sold a boat to C. E. King, who gave a chattel mortgage
Prior to the legislative session of 1915, the requisites necessary to the giving of a chattel mortgage were contained in § 3660, Rem. & Bal. Code, and under that section, in as far as it relates to the question of the necessity of filing the chattel mortgage within ten days from its execution, this court has held that a chattel mortgage was valid, as to creditors other than those who had acquired some form of lien upon the mortgaged property, whether the mortgage was properly recorded or not. Heal v. Evans Creek Coal & Coke Co., 71 Wash. 225, 128 Pac. 211. It has also been held that an unrecorded mortgage might, after the ten-day period provided by the statute, be recorded and become effective after the date of such recording as to all creditors, both prior and subsequent, except such creditors as may have had a lien prior to the filing. Pacific Coast Biscuit Co. v. Perry, 77 Wash. 352, 137 Pac. 483; Watson v. First Nat. Bank, 82 Wash. 65, 143 Pac. 451; Keyes v. Babin, 101 Wash. 618, 172 Pac. 835, and other cases cited in these opinions.
In view of these decisions, and with the obvious purpose of changing the rule they announced, the legislature, in 1915, passed the act (Rem. Code, § 3660), which provides that a chattel mortgage not filed within ten days from the time of its execution is void “as against all creditors of the mortgagor, both existing and subse
In the case of Robertson, Thieme & Morris v. Whittier, 112 Wash. 6, 191 Pac. 763, the rule which we announce is suggested, although the decision went off on another point.
Although the record is silent upon this question whether the appellant took his bill of sale without notice of the prior chattel mortgage, this is not sufficient to defeat his claim. The burden of alleging and proving notice is upon one claiming the personal property under the alleged chattel mortgage. In Manhattan Trust Co. v. Seattle Coal & Iron Co., 16 Wash. 499, 48 Pac. 333, 737, we said:
“There is no evidence whatever that the petitioners had any notice of the existence of any chattel mortgage in favor of the plaintiff. Counsel for plaintiff and re- • ceiver argued that as petitioners, as creditors, have not negatived notice or knowledge on their part, it should be inferred against them; but this would be a novel rule and one which we have never seen applied. Such allegation and proof of notice should come from the one claiming the personal property under the alleged mortgage.”
There being no proof to contradict his good faith, the lower court should have enjoined respondent’s sale, and for failure to do so, the judgment is reversed.
Parker, C. J., Bridges, Fullerton, Main, Holcomb, Tolman, and Mitchell, JJ., concur.