71 P. 873 | Utah | 1903
Lead Opinion
This is an action of replevin. The answer denies the plaintiff’s alleged right to the possession of about 100 head of sheep claimed from defendants, and alleges that the defendants are the owners of, and entitled to the possession of, the same. A jury being impaneled in the ease, the plaintiff placed Orson Rumel upon the witness stand, and he testified as follows: “I know the signature of Earnest A. Purnell. Have seen him write his name several times. I saw him write his name to the promissory note.” And! after identifying the note as the one set out in the mortgage, he further testified “that at the time Mr. Purnell signed said note he signed what purported to be a chattel mortgage. The chattel mortgage was given to secure the above-mentioned note, and Mr. Purnell-received $2,400 on the note and mortgage. No payments have been made by Mr. Purnell thereon, either principal or interest, excepting two interest payments. Mr. Purnell is still owing the bank the note. I witnessed the signature of Mr. Purnell to the mortgage, and after it was signed, acknowledged, and sworn to> and the notary’s signature and seal to the affidavits attached, I took it myself and mailed it, addressed to the county recorder of Oneida county, State of Idaho.” No objection was interposed by the defendants to this testimony.
The plaintiff then offered in evidence a chattel mortgage of a lot of sheep, in which were included the 700 in dispute, executed by one Earnest Purnell, of Cache county, Utah, in favor of the plaintiff, to secure a note for $2,400, dated at Salt Lake City, September 5,1900, and payable one year after date, with interest at the rate of eight per cent, per annum. The sheep at the time said mortgage was executed were on the range in Oneida county, State of Idaho. Among other stipulations, the mortgage contained the following: “It is further agreed and stipulated that if said mortgagor shall fail to make any payment, as in said promissory not provided, or in case said mortgagee shall at any time deem its debt insecure,
Attached to the mortgage were the following affidavit and certificates of acknowledgment and recordation of mortgage:
“State of Utah, County of Salt Lake — ss.: Earnest A. Purnell, the mortgagor, H. S. Young, the cashier and agent for the mortgagee, named in the foregoing mortgage, being duly sworn, severally declare, each on oath, that this chattel mortgage is made in good faith to secure the amount and debt therein specified, and without any design to hinder or delay the creditors of said mortgagor. Earnest A. Purnell. H. S. .Young.
“Subscribed and sworn to before me a' notary public in and for said county at Salt Lake City, Utah, this 5th day of September, A. D. 1900. Hyrum J. Young. [Seal.].
“United States of America. State of Utah, County of Salt Lake — ss.: On this 5th day of September, 1900, personally appeared before me Earnest A. Purnell, the signer of the above instrument, who duly acknowledged to me that he executed the sama Hyrum J. Young, N. P. My commission expires November 24, 1900.”
Indorsed:
“Chattel Mortgage Na 480. Recorded at the request of H. S. Young, September 8, A. D. 1900, at 5 minutes past 9 a. m., in book B, Chattel Mortgages, page 123. D. J. Reynolds, recorder.
“State of Idaho-, County of Oneida — ss:: I, D. J. Reynolds, recorder of Oneida county, Idaho, do- hereby certify the above and foregoing to be a full, true, and correct copy*383 of tbe chattel mortgage now on file in my office. Witness my band and seal of my office at Malad City, Idaho,-, this tbe 16th day of September, 1901. [Signed.] D. J. Eey-nolds, recorder, by W. H. Eicbards, deputy.”
Defendants’ attorney objected to tbe admission of the mortgage in evidence on tbe following grounds: (1) Tbe mortgage was not dated; (2) that tbe affidavit that it was made in good faith was.sworn to by H. S-. Young in bis individual capacity, and not as an officer or agent of the plaintiff corporation.; (3) that said affidavit alleged to have been sworn to by EL -S. Young and Earnest A. Purnell did not contain, as is required by the statute of tbe State of Idaho, the word “defraud,” or any word of similar import; (4) that tbe notary’s certificate did not recite that Earnest A. Purnell was known to him to be, or proven on the oath of any one to be, the signer of tbe instrument, as is required by the statutes of the State of Idaho, to-wit, sections 2955 and 2958 of tbe Eevised Statutes of Idaho of 1887; (5) for the reason that it was not recorded in tbe county of Cache, State of Utah; (6) that tbe alleged seal of tbe alleged county recorder of Oneida county, was not attested as provided in section 3378, 3387, subd. 7, Eevised Statutes, Utah 1898; (7) that tbe evidence is insufficient to show that plaintiff is entitled to any of the relief prayed for. Tbe objections were overruled, and tbe mortgage admitted “subject to. said objections.”
Plaintiff thereupon introduced evidence that tbe 700 sheep claimed were a part of the band of sheep which was mortgaged by the said Earnest A. Purnell, and of which be was tbe owner; that previous to the institution'of this suit tbe plaintiff demanded from tbe defendants the sheep in dispute; and that the defendants refused to deliver them to the plaintiff. Hyrum J. Young, the notary public before whom the mortgage was ‘acknowledged, testified, on behalf of plain
Plaintiff also introduced in evidence the said William Kidman’s statement that ha bought the sheep in question of Earnest A. Purnell some time in November, 1900; that at the time of the purchase the sheep were in Oneida county, State of Idaho; and that he brought them into Utah — and the following provisions of the Idaho' Statutes:
“Sec. 3385. Chattel mortgages may be made uppn all property, goods or chattels not defined by statute to be real estate.”
“Sec. 3397. If the mortgagor of any property mortgaged in pursuance of the provisions of this chapter, while such mortgage remains unsatisfied, in whole or in part, willfully removes from the county or counties where the mortgage is recorded, destroys, conceals, sells, or in any manner disposes of the property mortgaged, or any part thereof, without consent of the holder of said mortgage, he is guilty of larceny and such sale or transfer is void.”
“Sec. 2952. The proof of acknowledgment of an instrument may be made without this Territory, but within the United States, and within the jurisdiction of the officer, before either ... a notary public,”- etc.
“Sec. 295,5. The acknowledgment of an instrument must not be taken unless the officer taking it knows, or has satisfactory evidence, on oath or affirmation of a creditable-witness, that the person making such acknowledgment is the individual who is described in, and wbo executed the instrument; or, if executed by a corporation, that the person making such acknowledgment is the president or secretary of such corporation.”
*385 “Sea. 2958. The certificate of acknowledgment, -unless it is otherwise in this chapter provided, must be substantially in the following form: ‘Territory of Idaho, County of' — — ss.: On this . . . day of ... in the year . . . before me (here insert the name and quality of the officer) personally appeared . . . known to me (or proved to me on the oath of . . .) to be the person whose name is subscribed to the within instrument, and acknowledged to me that he (or they) executed the same.’ ”
Also Session Laws of Idaho of 1899, p. 121, as follows:
“Section 1. That title 12 of chapter 4, sections 3386 and 3387, be amended so as to read as follows : ‘Sec. 3386. A mortgage of personal property is void as against creditors of the mortgagor and subsequent purchasers, and incumbrances of the property in good faith and for value, unless: Eirst. It is accompanied by the affidavit of the mortgagor that it is made in good faith and without any design to hinder, delay or defraud creditors. Second. It is acknowledged or proven 'as grants of real estate and the mortgage, or a true copy thereof, is filed for record with the county recorder of the county where such property is located, and kept.’
“Sec. 2. Section 3387 is amended to read as follows: ‘Sec. 3387. Upon the receipt of any such instrument, the recorder shall endorse upon the bade the time of receiving it, and shall file the same in his office, to be kept there for the inspection of all persons interested,’ ” etc.
“Sec. 3. All acts and parts of acts inconsistent with this act are hereby repealed.”
Some other evidence, which it is not necessary to set out, was introduced by plaintiff; and, when it rested, the defendants’ attorney moved that the chattel mortgage be stricken out on the grounds of the original objections. This motion was denied, whereupon the “plaintiff then admitted that defendants had no other notice of the mortgage, except the notice imparted by the record of it in Oneida county, and that it
1. In the absence of statutory provisions such as are contained in section 2955 of the Idaho Statutes, the law does not permit an officer to take the acknowledgment of a
This brings us to the question whether the certificate in this case substantially complies with the prescribed form. The identity of the mortgagor and his acknowledgment
2,. A mortgage of personal property is required by section 3386 of the Idaho statutes to be accompanied by the affidavit of the mortgagor “that it is made in good faith
3. The execution of the mortgage was shown by the testimony of Orson Rumel, who signed the same as a witness, and by other evidence. The mortgage was therefore valid,
Under the facts disclosed by the record, the mortgage was properly admitted in evidence, and the court below erred in directing the jury to return a verdict for the defendants.
From the views we have expressed, it is unnecessary to pass upon the other questions raised by counsel.
The judgment of the lower court is reversed, with costs, and 'the case remanded for a new trial.
Dissenting Opinion
I dissent from the views expressed by the learned Chief Justice as to the sufficiency of the affidavit attached to the chattel mortgage in question. I fully agree with the opinion expressed by this court in the case of Petrovitzky v. Brigham, 14 Utah 472, 47 Pac. 666, that the words “hinder” and “delay” are practically synonymous terms. Under our statute the use of either word in the affidavit would make it valid, and the use of any additional words, such as “defraud,” -etc., would be treated as mere sur-plusage. Reed v. Worthington, 9 Bosw. 617. But under a statute which provides that a chattel mortgage is absolutely void as to subsequent bona fide purchasers of the mortgaged property unless it is accompanied by the affidavit of the mortgagor that the mortgage is made “without any design to hinder, delay, or defraud,” I think that the omission of the word “defraud,” or the absence of some word of similar import, is fatal to the validity of the document. It does, not seem to me that any amount of reasoning will make the words “hinder or delay” include the word “defraud.” The former words simply mean an effort to temporarily impede or intercept some right, property, or interest, which, however, will be ultimately secured; but the word “defraud” means an
For these reasons, I think the lower court properly held that the chattel mortgage, introduced by plaintiff below as the only basis of its title, was fatally defective, and void as against the defendants, who were admittedly bona fide purchasers, without actual notice.