Cope v. Minnesota Type Foundry Co.

| Mont. | Jun 30, 1897

Buck, J.

The affidavit of March 14, 1895, attached to the chattel mortgage executed to the Minnesota Type-Foundry' company, was wholly insufficient. At the time said affidavit was made, Section 1538, Compiled Statutes 1887, was in force. Said section required a chattel mortgage to be accompanied by an affidavit of all the parties thereto.

This section is as follows : £[No mortgage of goods, chattels or personal property shall be valid as against the rights and interests of any other person than the parties thereto, unless the possession of such goods, chattels or personal property be delivered to and retained by the mortgagee, or the mortgage provide that the property may remain in the possession of the mortgagor, and 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. ”

In Leopold v. Silverman, 7 Montana 266, 16 Pac. 580, this section was construed, and the court held that the absence of a party to a chattel mortgage should be clearly set forth in the affidavit itself before an agent could make the oath required by the law.

Appellants urge that the fact that the Minnesota Type-Foundry company was absent from the state at the time of the execution of the mortgage sufficiently appears from the recital in the body of the mortgage that it (said Minnesota Type-Foundry company) is a corporation of the City of St. Paul, State of Minnesota. Plaintiff’s complaint also avers that the Minnesota Type-Foundry company is a corporation organized under the laws of the State of Minnesota. But neither the recital in the mortgage nor the said averment in the complaint can avail the appellants in this contention. While it is true that the domicile of a corporation is ordinarily the state of its creation, still a corporation organized in one state can acquire a domicile in another for the purpose of transacting its business. Moreover, it whs expressly held in Butte Hardware Co. v. Sullivan, 7 Montana 307, 16 Pac. 588 — and the doctrine whs reiterated in Baker v. Power, 7 Montana 326, 16 Pac. 589— that the body of a chattel mortgage cannot be looked to for the purpose of supporting or explaining the affidavit thereto. These cases on the subject of chattel mortgages impress us as somewhat narrow in their construction of the chattel mortgage laws of Montana in relation to affidavits, but they have been relied upon so long that we deem it our duty to substantially adhere to them.

For another reason, also, this affidavit to the chattel mortgage executed to the Minnesota Type-Foundry company is insufficient.

In Butte Hardware Co. v. Sullivan, supra, a chattel mortgage was considered by the court which recited that it was between ‘ ‘M. and P., partners under the firm name of Maxwell & Price, parties of the first part, and H., B., S., D., and C., partners under the firm name of Hoge, Brownlee & Co., parties of the second part;” and the court held that said mortgage was executed by individuals to individuals, and that the recitals of the firm names were mere descriptionee personarum.

Tested by this rule, the mortgage we are now considering was executed to the Minnesota Type-Foundry company by Ross, Frank, and Eaves as individuals, and not as a firm. The affidavit purports to be made by the Ross, Frank & Eaves Publishing company, per Eaves, Ross and Frank. It should have been made by Ross, Frank, and Eaves personally. An oath cannot be taken vicariously. A. cannot go before an officer authorized to administer oaths, and swear that B. makes affidavit to a- certain condition of facts. An oath is a purely personal act. An agent may swear in behalf of his principal when the law permits it, but the oath nevertheless is his own personal act.

We shall next consider the affidavit attached to the chattel mortgage executed by Eaves to Cope, cashier.

We are of the opinion that this affidavit is sufficient under section 1538 Compiled. Statutes 1887, supra. It is true that certain language in the case of Leopold v. Silverman, supra (see pages 280, 281, 7 Montana, and page 584, 16 Pac.), appears to indicate a contrary view.

The court said in that case : ‘ ‘A further defect suggested in the affidavit is this : That there is nothing in the mortgage or affidavit to show the connection of Bohm Bros. & Co. therewith, and that, although the pleadings and accompanying affidavit show that the note secured by the second mortgage includes a sum of money due to Bohm Bros. & Co., no one even pretends to make oath to the mortgage in their stead. This objection is certainly fatal. It is not even attempted to comply with the law on their behalf, and for this reason, also, the affidavit must be held to be defective. ’ ’

This language was used after the court had held that the affidavit under its consideration was void. It was in no wise necessary to a decision of the case, and we think was used hastily. Where a chattel mortgage between two persons does not disclose any person or persons for whom one of them is a trustee, to hold that any other person than those named therein as parties should make the affidavit required by the statute would be contrary to the spirit of the statute requiring the affidavit. We therefore hold that this affidavit to the mortgage given by Eaves to Cope is sufficient.

We decide these questions raised in reference to the validity of these two mortgages for the guidance of the court below. This case must be reversed for the following reasons : Plaintiff’s complaint nowhere alleges or suggests that the mortgage on which he relies was ever filed in the office of the county clerk and recorder of Lewis and Clarke county. Section 1541, Compiled Statutes 1887, is as follows: “Every mortgage of goods, chattels or personal property made, acknowledged and filed as provided by the laws of this state shall thereupon, if made in good faith, be good and valid as against the creditors of the mortgagor or subsequent purchasers or mortgagees, from the time it is so filed until the maturity of the entire debt or obligation secured thereby and for the period of sixty days thereafter. Provided, that the entire period of time such mortgage shall be valid and binding against the creditors of the mortgagor and subsequent purchasers and mortgagees shall not exceed one year and sixty days except by a compliance with the provisions of Section 1542 of this act.”

Considering the complaint of plaintiff and the answer together, for all that appears plaintiff. had never filed his mortgage for record. If he did not, how could it be claimed that his mortgage was superior to the one executed to the Minnesota Type-Foundry company ?

It in no wise appears that plaintiff’s mortgage was in force, as against the Minnesota Type-Foundry company, at the time the latter corporation caused the sheriff of Lewis and Clarke county to take the chattels in controversy into his possession. From the averments in the first cause of action, which plaintiff attempts to set forth in his complaint, it does not appear that his mortgage was valid as to any one except Eaves, the mortgagor, or a bare trespasser. There is nothing to suggest any filing thereof, or to negative an inference that it had become inoperative through lapse of time, even on the assumption that it had been filed at the date of its execution. The allegation in what plaintiff attempts to set forth as a second cause of action, “That on the 26th day of June the said mortgage was extended to the 22d day of June, 1896,” is the statement of a mere legal conclusion. There was no necessity even for any denial of it in the answer of appellants.

Section 1542, Compiled Statutes 1887, is as follows: “Every mortgage of goods, chattels or personal property made, acknowledged and filed as provided by the laws of this territory may be renewed at or before the maturity of the debt or obligation secured thereby in case such .debt or obligation or any part thereof be unpaid or unfulfilled by filing an affidavit showing the date of such mortgage, the name of the mortgagor and mortgagee, the date of. filing the same, the amount of the debt or obligation secured thereby, and the amount of the debt justly owing at the time of filing such affidavit or the conditions of the obligation unfulfilled, the time to which the same is extended, which time shall not exceed one year, and that such debt or obligation was neither made nor renewed or extended to hinder, delay or defraud the creditors or subsequent mortgagees of the mortgagor, which affidavit shall be subscribed and sworn to by the mortgagee before an officer authorized to administer oaths, and filed in the office where such mortgage therein described is filed, and thereupon the clerk and recorder of deeds of such county shall attach such affidavit to the mortgage therein described and note the date of filing thereof opposite the entry of the mortgage therein described in the book provided by law for the entry of chattel mortgages and thereby such mortgage shall be renewed, continue and be valid and of full force and effect upon the goods, chattels or personal property described' therein for the time stated in such affidavit, not to exceed one year. ’ ’

Under this last-quoted section, it was incumbent upon plaintiff to have alleged a compliance with this law in order to have established any right acquired thereunder. He says his mortgage was extended. Could the court have inferred from this that said Section 1542 had been complied with? We think not.

It is hardly necessary to cite authorities to show that this averment is a statement of a mere legal conclusion. They are numerous. We call attention, however, to the case of (Clark v. Lineberger, 44 Ind. 224, as clearly pointing out the reasons why such an averment should be deemed insufficient.

The lower court erred in sustaining the demuzuer to appellants’ answer.

The cause is remanded, with directions to the District Court to overrule plaintiff’s demurrer.

Reversed and Remanded.

Pemberton, C. J., and Hunt, J., concur.