14 Wash. 453 | Wash. | 1896
The opinion of the court was delivered by
This action was brought to foreclose a chattel mortgage executed by V. Kratz and the Clal-lam Lumber Company to Russell & Co., an Ohio corporation, to secure the payment of $3,000, the same being a part of the purchase price of certain sawmill machinery included in the mortgage. The instrument was dated May 26, 1891, but was not acknowledged and delivered until June 3, 1891. At or about
Upon the issues presented by the pleadings a trial was had resulting in a decree of foreclosure of the mortgage in question. From this judgment and decree the defendant Earles has appealed and alleges, among other things, that the court erred in overruling his demurrer to the complaint. His contention is that under the express provisions of our statute the mortgage upon which this action was based was and
In order to determine which one of these positions is correct it is necessary to refer to the statute concerning chattel mortgages, for it can hardly be disputed that he who claims a statutory lien upon property must be able to show that he is within the terms of the statute granting or authorizing it. That a mortgage of personal property may be good as between the parties, and, at the same time, void as to other parties is not disputed. The only question here is whether the mortgage as to appellant is or is not void under the statute. Sec. 1648 of the General Statutes, (1 Hill’s Code,) provides that,
“A mortgage of personal property is void as against creditors of the mortgagor or subsequent purchaser, and incumbrances of the property for value and in good faith, unless 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, and it is acknowledged and recorded in the same manner as is required by law in conveyance of real property.”
It will be observed that this statute makes a broad distinction between creditors and subsequent purchasers or incumbrancers. As to the former it positively
See, also, Chase v. Tacoma Box Co., 11 Wash. 377 (39 Pac. 639); Darland v. Levins, 1 Wash. 582 (20 Pac. 309); Hinchman v. Point Defiance Railway Co., ante, p. 349; Jones, Chattel Mortgages (4th ed.), § 318.
The complaint in this action alleges that appellant’s interest in the property in question was acquired subsequently to the making and delivery of respondent’s mortgage, and with full knowledge of its existence and that the same had not been paid; and this being true for the purpose of the demurrer, it follows that the objection to the complaint on the ground that the mortgage was not acknowledged or recorded is not well taken.
But it is further claimed that the mortgage is void on its face for the reason that the description of the
Tested by this rule, we think the description is sufficient, and that the demurrer was properly overruled.
It is contended by appellant that the court erred in admitting in evidence certain depositions, for the reason that they were published by order of the court without notice to appellant. In support of this contention, appellant cites § 822 of the Code of Procedure, which requires certain motions to be made in writing
It is insisted, however, that the deposition of E. B,. Fraser should have been excluded, for the reason that it was not proved that the person before whom it was taken was a justice of the peace, and that an amended complaint was filed after it was taken, which materially changed the issues to be tried. It is a sufficient answer to these objections to observe that it appears that the deposition was taken on notice before J. B. Wood, a justice of the peace of Spokane county, and was certified and returned as required by statute, (Code Proc., §1666, et seq.,) and that the testimony in the deposition was upon, and pertinent to, an issue raised in the amended complaint, and was, therefore, admissible. The original complaint is not in the record and, therefore, we are unable to say what issues were raised or tendered by it. Two of the depositions used on the trial were opened by the clerk by mistake, without an order of the court, but were at once sealed up again and kept in the custody of the clerk until regularly ordered to be published by the court. Under such circumstances it was clearly within the discretion of the court to admit them in evidence. Weeks, Depositions, §§ 422 and 429; Spear v. Richardson, 37 N. H. 23.
It is also urged that the evidence fails to prove that
There is, however, other evidence upon this question in the record. Mr. Bigelow, a witness for plaintiff, testified:
*460 “ Mr. Earles told me that he was negotiating to buy the plant; that it would be bought cheaply if he bought at all. He said it was tangled up by claims and mortgages against it and that the original debt for machinery was not paid. He said he would have to look into the matter further, but he knew there was a mortgage against the first price of the machinery. . . . In my first conversation with Mr. Earles at Clallam Bay he said that this mortgage would have to be looked into; that he was investigating the affair. He said the machiney was bought in Portland, Oregon, and the Portland party held the mortgage, and that he was investigating the matter.”
Mr. Bigelow also stated that he had had some disagreeable litigation with Mr. Earles, but that that fact did not affect his testimony. And another witness, Mr. Gilpin, who sold to appellant the mortgage against the property held by himself and Iseberg, states that appellant told him during the negotiations for the sale that he could not pay full face value for the mortgage, and that if he (witness) went into court he would have to contend with Russell & Co.’s $3,000 claim. Appellant denied the statements imputed to him by Bigelow, but admitted in effect, that he learned from Fraser that Russell & Co. had a claim against the property for $3,000, and that he used this knowledge as an argument to obtain the Gilpin mortgage at a discount.
Notwithstanding the very able argument set forth in the brief of counsel for appellant, we are constrained to say that a consideration of all the facts and circumstances disclosed in the record convinces us that the court committed no error in finding that appellant purchased the property in question with full knowledge of respondent’s mortgage.
Some other points are raised in appellant’s brief,
We find no substantial error in the record, and the judgment will therefore be affirmed.