221 P. 145 | Idaho | 1923
— This is an action to determine the relative rights, as chattel mortgagees, of respondent Grandview State Bank and appellant Commercial & Savings Bank in a quantity of hay raised by respondents Torrance in 1920. The hay was sold by agreement and the proceeds deposited with the clerk, to be paid in accordance with the decree. Appellants’ claim is based on a chattel mortgage given in November, 1919, by respondents Torrance to one Mendiola, and by him assigned for value to the appellant bank. That bank failed and the individual appellants are its trustees. The respondent Grandview State Bank claims under a chattel mortgage dated June 18, 1920.
Appellants’ mortgage is dated October 1, 1919, was acknowledged the ( ) day of November, 1919, and filed for record June 5, 1920. There is attached to it what purports to be an affidavit of good faith signed by respondents J. S. and Mary B. Torrance, who were husband and wife. There is no jurat attached to the affidavit. O. E. Cannon, a notary public, was permitted to testify, over objection, that the affidavit was sworn to before him but he neglected to fill out and sign the jurat and affix his seal. June 18, 1920, respondent J. S. Torrance executed and delivered to the respondent bank his note for $3,000 for money loaned, and
Appellants claim that the mortgage of the appellant bank was valid, and should take precedence over that of the respondent bank. They also contend that they are at least entitled to the proceeds of the hay grown on 50 acres to the extent of $500, basing this claim on the facts that respondents Torrance were entitled to that much exemption, and the mortgage was not signed by the wife.
We do not find it necessary to pass upon all of the questions raised, but will confine ourselves to a consideration of a few, the decision of which is absolutely controlling.
Subdiv. 1, C. S., sec. 6375, provides as follows:
“A mortgage of personal property is void as against creditors of the mortgagor and subsequent purchasers and encumbrancers of the property in good faith and for value, unless:
“1. 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.”
Judging from the findings and the conclusions of law the lower court held that appellants’ mortgage was void as against respondent bank because it was not accompanied by
“From the manner in which the ease is drawn we must understand that the oath had in fact been administered; but of this the creditor had no knowledge, and the case so finds. The record gave him notice of the existence of a mortgage, without the affidavit required by statute; such a mortgage as would have been good under the act of 1832, or such as was good between the parties at the time it was executed. But the record was not notice of the existence of a mortgage executed and recorded according to the requirements of the statute, but of one which was, by the express provisions of law, invalid as to creditors.” (Hill v. Gilman, 39 N. H. 88.)
“Creditors going to the files and records of a county, and finding a mortgage like the one under examination, would at once conclude that no oath had been administered to the parties; hence that the mortgage was not such as the law required. On principle, therefore, this mortgage cannot be held valid as against bona fide creditors, without ignoring the statute, and it was properly excluded.” (Reynolds v. Fitzpatrick, 23 Mont. 52, 57 Pac. 452.)
We conclude that the mortgage of appellant bank was invalid as against a subsequent encumbrancer in good faith
The description of the hay was somewhat indefinite but was sufficient as between the parties with the aid of the identifying evidence. Appellants contend the mortgage was invalid because the acknowledgment was taken before an officer of the respondent bank. If the mortgage was valid as between the parties that is sufficient and acknowledgment was not essential to that. (Boswell v. First Nat. Bank, 16 Wyo. 161, 92 Pac. 624, 93 Pac. 661.) It is therefore unnecessary to pass upon this question. C. S., sec. 6374, provides:
“No personal property of either husband or wife, that is exempt by law from execution, shall be mortgaged by either husband or wife without the joint concurrence of both.”
Under subdiv. 3 of C. S., sec. 6920, the Torrances were entitled to the following exemption: 4 oxen, or 4 horses or 4 mules, to be selected by the claimant, and feed for them for 6 months; also the crops growing or grown on 50 acres of land not to exceed in value $500. The hay in controversy was grown on more than 50 acres, and exceeded $500 in value. This court has held that a mortgage executed by the husband alone on chattels, which are exempt from execution, creates no lien thereon. (Kindall v. Lincoln Hardware etc. Co., 8 Ida. 664, 70 Pac. 1056.) In the present case the property covered by the mortgage is in part exempt and in part not exempt. In such case the mortgage is invalid only as to the exempt property. (Watson v. Mead, 98 Mich. 330, 57 N. W. 181; Green v. McCrane, 55 N. J. Eq. 436, 37 Atl. 318.) Conceding for the sake of argument, but not deciding, that the question of the debtor’s right to an exemption can be raised by a creditor or encumbrancer rather than by the debtor himself, it was certainly incumbent upon appellants to show that the exemption obtained. (Childers v. Brown, 81 Or. 1, Ann. Cas. 1918D, 170, 158 Pac. 166; McMasters v. Alsop, 85
The judgment is affirmed, with costs to respondent bank.
