89 Ill. 585 | Ill. | 1878
delivered the opinion of the Court:
The only objection, as shown by the record, taken to the chattel mortgage, upon the trial below, was the general one, that “it was not properly acknowledged and recorded according to the statute.” In what respect it lacked the statutory requirements, in respect of acknowledgment and recording, was not pointed out.
So far as we have been able to discover, there is no substantial objection to the form or mode of acknowledgment, and the proof of the recording is entirely satisfactory. The omission, in the certificate of acknowledgment, of the words directed by the statute, “ and entered by me,”- after the words “acknowledged before me,” we have held, in Schroder v. Keller, 84 Ill. 46, did not vitiate and render invalid the acknowledgment,—where, as here, the justice taking the acknowledgment did, in fact, make the entry upon his docket, as required by the statute.
But the point relied upon by appellee’s counsel, to sustain the finding and judgment below, is, that it was not proven on the trial that the justice taking the acknowledgment was of the town of Sheldon, where the mortgagor resided. As above observed, it does not appear that this specific objection was urged upon the trial. The certificate of acknowledgment does not show in what town of Iroquois county the justice taking the acknowledgment holds office. It was, therefore, clearly an objection which, if it had been specifically urged, might have been removed by further proof, and it can not be heard here. Harmon et al. v. Thornton, 2 Scam. 353; Funk et al. v. Staats, 24 Ill. 632; Wright et al. v. Smith, 82 id. 527.
The latter case is a stronger case for the party claiming under the mortgage than the present. There, secondary evidence was given of a mortgage, (the original having been destroyed by fire,) which did not include* proof that the mortgage was acknowledged in the proper district. The court, on motion, excluded the evidence—whether on that or other ground did not appear. A majority of the court, not including the writer of this opinion, held the exclusion of the evidence error, and that the party claiming under the mortgage was entitled to have had the specific objection that the evidence did not show that the acknowledgment was taken in the proper district, pointed out to him, so that he might have removed it by further evidence.
In our opinion, the finding and judgment below resulted from a misapprehension of the law applicable to the case.
The judgment is reversed and the cause remanded.
Judgment reversed.