67 Ill. App. 606 | Ill. App. Ct. | 1896
Lead Opinion
delivered the opinion oe the Court.
Section 1 of Chapter 95 of the Revised Statutes of Illinois, is as follows:
“ 1. That no mortgage, trust deed or other conveyance of personal property having the effect of a mortgage or lien upon such property, shall be valid against the rights and interests of any third person, unless possession thereof shall be delivered to and remain with the grantee, or the instrument shall provide for the possession of the property to remain with the grantor, and the instrument is acknowledged and recorded as hereinafter directed; and every such instrument shall, for the purposes of this act, be deemed a chattel mortgage.”
By virtue of the statute, any conveyance of personal property having the effect of a mortgage or lien upon personal property, providing, etc., acknowledged and recorded in accordance with the act, is, for the purposes of the act, “ deemed a chattel mortgage.” . -
That the order of W. H. Luther did, when accepted and acted upon by the Rational' Cash Register Co., in delivering to him the register, have the effect of a conveyance by •such company to him of the personal property mentioned in ■said order, is manifest. It is also apparent that such order, acceptance and delivery had the effect, as between the company ,and Luther, of giving to it a lien upon the register for the amount unpaid thereon.
Any person knowing that this order had been complied with, would regard it as in effect amounting to a conveyance ■of the register to Luther, and reserving to the register ■company a lien on the property so conveyed.
Such being the case, if the order was acknowledged and recorded in accordance with the statute, the record became notice of the lien of the company.
We think the instrument was properly acknowledged and recorded. The justice in his certificate calls it a mortgage; the acknowledgment was written upon the instrument, and whether, technically, it was a mortgage, is immaterial.
The form of acknowledgment given in the statute does not contain a statement as to venue.
The omission of the name of the county for which the justice was such officer, and in which the acknowledgment was taken, is immaterial, as it is perfectly certain that the acknowledgment was taken by a justice of the peace in and for the town of South Chicago, which we judicially know is in the county of Cook. Chiniquy v. Catholic Bishop of Chicago, 41 Ill. 148.
Counsel for appellant insist that the mortgage was not properly introduced in evidence,because produced and offered at the taking of a deposition. The mortgage was identified by the witness; he was examined and cross-examined as to the same; it was properly attached to the deposition as a part thereof, presented to, and properly received and considered by the court before which the cause was tried.
As soon as the order had been accepted by the register company, a contract capable of enforcement was created. The contract contemplated that the register company should deliver a register of a certain pattern, and that thereafter Luther should pay therefor the sum of $175; appellee retaining, until such payment was made, the title to said register “ as security ” for the deferred payments.
In fulfillment of the contract, the register company delivered the register to Luther, and thereupon at the same time, the lien of appellee came into effect; the words of the contract pledging to appellee the property as security, notwithstanding the possession thereof by Luther, became operative.
The case is not one of a pledge of after-acquired property, or of an article, not then in being, but of a thing, a complete right to which was obtained when the contract was accepted, which property, in accordance with the contract, was delivered to the mortgagor. Up to the time of delivery, appellee had, by possession, security for what was to be paid to it; so soon as the delivery took place, the written pledge took effect, which pledge, having the effect of a lien, and therefore by statute a chattel mortgage, was, by virtue of its acknowledgment and recording, notice to all the world. Greenaway v. Fuller, 47 Mich. 557; Harkness v. Russell, 118 U. S. 663; Hooven v. Burdette, 153 Ill. 679; Newell v. Grant Locomotive Works, 50 Ill. App. 611; Ward v. Shaw, 7 Wend. 404; Benjamin on Sales, Sec. 320.
One may make a valid mortgage of a thing in which he has at the time a potential interest; as, if he owns sheep he may mortgage the wool to grow upon them; but a fisherman who owns a schooner and is about to proceed upon a fishing voyage, can not mortgage the fish he expects to catch, because, he has no potential interest in them. 3 Am. & Eng. Ency. of Law, 183; Case v. Stovall, 50 Miss. 396; Grantham v. Hawley, Hob. 132; Thrash v. Bennett, 57 Ala. 156; Low v. Pew, 108 Mass. 347.
The sheriff not only had constructive but actual notice of the mortgage. Prior to the' sale, he was told of the mortgage; it was unnecessary to do more. Appellee need not have attended the sale, nor was he required there to protest against the same.
The property was sufficiently described in the mortgage. The contract showed that it was to be taken to “Ho. 102 22d street,” and there it was found and seized by appellant.
The judgment of the Circuit Court is affirmed.
Dissenting Opinion
dissenting.
The instrument which Judge Waterman treats as within the statute concerning chattel mortgages, is evidence only of a conditional sale; void as to an execution creditor of the vendee. Van Duzor v. Allen, 90 Ill. 499. ,
To record it, without an acknowledgment, was an idle ceremony.
Hnless it was such an instrument as the statute concerning chattel mortgages makes provision for being acknowledged, the acknowledgment was equally idle. The only instruments contemplated by the statute are such as transfer a right of property from the debtor to the creditor—if to secure the payment of money be the object, and such as retain a lien only for purchase money are not, either by general law or the statute, to be deemed chattel mortgages. There is a special objection to the acknowledgment here. It does not say “ this mortgage,” but “ the mortgage.”
Quite consistently with the language, the intention was to convey the information that there was a mortgage somewhere connected with the transaction.
I think the judgment should be reversed.
