119 Wash. 252 | Wash. | 1922
Lead Opinion
— This is a suit in equity, brought by appellants to enjoin respondents from selling an automobile mortgaged by appellants’ vendor, L. A. Morse, to respondent Bardshar.
On June 24, 1920, respondent Bardshar, at Seattle, Washington, sold the car in question to one L. A. Morse, a resident of Bellingham, Whatcom county. At that place and time, Morse paid Bardshar a portion of
The case was submitted to the trial court upon stipulated facts, and judgment for the amount of the mortgage and costs was entered in favor of the respondent Bardshar and against the appellants, as plaintiff and sureties.
Appellants first contend that the mortgage should have been recorded within ten days from its date in King county, Washington, where the sale was made. We are of the opinion, however, that under the terms of the transaction, it being known that the purchaser, Morse, was a resident of Whatcom county, and it being stipulated that he was to retain possession of the car in Whatcom county, and not permit it to be removed therefrom, the parties thereto, in effect, stipulated that
The car having been delivered to Morse in "Whatcom county, and the chattel mortgage filed for record within ten days after the date of the mortgage, we will assume that that was the proper place of- filing the mortgage. Stitt v. Spengel House Furnishing Co., 58 Colo. 559, 146 Pac. 770.
The mortgage not having been filed in Island county within thirty days after removal of the property to that county, as required by Rem. Code, § 3668
The statute referred to is very precise. It provides:
“"When personal property mortgaged is thereafter removed from the county in which it is situated, it is, except as between the parties to the mortgage, exempted from the operation .thereof, unless either,— 1. The mortgagee within thirty days after such removal causes the mortgage to be recorded in the county to which the property has been removed; . . .”
Respondents contend that, since the purchase of the automobile was made within the thirty days allowed by the statute after the removal from "Whatcom county, the purchaser could not claim the benefit of the statute. "We are of the contrary opinion. The language used in the statute, that the property is exempted from the operation of the mortgage unless the mortgage is filed within thirty days after its removal, is equivalent to saying that the lien is absolutely lost
*256 . . we are not permitted to look beyond tbe statute for aid in the general rules of law or equity.” Smith v. Allen, 78 Wash. 135, 138 Pac. 683, Ann. Cas. 1915D 300.
In First National Bank of Everett v. Northwest Motor Co., 108 Wash. 167, 183 Pac. 81, where we sustained tbe lien of a chattel mortgage upon tbe facts there appearing, it was said:
“It may be admitted, for tbe purposes of this decision, that, if tbe sale occurred in May, tbe Northwest Motor Company acquired a good title because tbe mortgage was not filed or recorded in King county within tbe thirty days specified in tbe statute. On tbe other band, if no title then passed, but a sale occurred in November and was made subject to tbe mortgage held by tbe respondent, then tbe judgment of tbe trial court should be sustained.
“Upon conflicting evidence, tbe trial court found tbe facts to be in accordance with tbe contentions of tbe respondent.”
Tbe mortgagee in this case never filed bis mortgage in Island county, where tbe car was taken, within tbe thirty days allowed by tbe statute, nor at any other time, and yet proceeded to sell tbe car under foreclosure by notice and sale in Island county, long after its removal to that county, long after tbe thirty days therefrom bad expired, as if tbe lien existed there, when it did not. It bad no more existence in Island county, after thirty days from tbe removal from Whatcom county, than if it bad never been executed at all.
Had tbe mortgage been recorded or filed in Island county within tbe thirty days provided by statute, tbe purchaser of the car might have been able to do something to satisfy tbe lien with tbe mortgagee and protect bis title.
Reversed with costs.
Parker, C. J., Tolman, Main, Fullerton, Bridges, and Mackintosh, JJ., concur.
Note: See Rem. Comp. Stat., § 3788.
Dissenting Opinion
— I dissent. Morse, who held the legal title to the car and lived in Whatcom county, drove it to Island county and sold it to the appellant, who had full knowledge of Morse’s residence, although he had no actual knowledge of the mortgage.
The provision of the statute relative to recording should he given a rational construction. In the first place, it recognizes that there is a valid lien by virtue of the filing at the original situs of the property, and for a full period of thirty days after removal. In the second place, the original owner is not relieved from the obligation by the failure to refile. Now the purchaser takes his title and succeeds to all the rights of the original owner while the lien is in full force, and, of course, subject to the lien, of which he has constructive notice by the original filing. His position is fixed at the time of purchase. Can he contend for a compliance with a provision which can only be effective as against parties dealing with the property after the thirty-day period has expired and which cannot have any possible effect upon him? I think not. In construing this provision we must consider its object. It is notice, constructive it is true, but nevertheless notice. Of what avail is notice after the rights are fixed? To say that the mortgagee must file his mortgage to preserve the lien as against a purchaser who buys within the thirty-day period is to sacrifice substance to form.
■ The opinion of the majority is likely to facilitate fraudulent disposal. The owner can transfer property into a neighboring county, dispose of it and return to his resident county, and after the property has been so hidden for thirty days, the lien would be lost.
The case of Davis & Co. v. Thomas, 154 Ala. 279, 45 South. 897, is squarely in point that the mortgage need not be filed in the county of purchase, and the reasoning of the case is equally applicable on the second point in this case. “It will not do to be governed uniformly by the literal expression of the statute, for by so-doing we should many times wander entirely from the obvious intention of the legislature.”
Appellants cite Turner v. Caldwell, 15 Wash. 274, 46 Pac. 235, but the property was purchased in that case after the thirty-day period following removal had expired.
In my opinion, the proper filing of the mortgage in Whatcom county preserved the lien for thirty days after its removal, and the purchase being made within that time, it was made while the car was subject to the lien of the mortgage, and the failure to subsequently file did not affect this transaction.
Mitchell, J., concurs with Hovey, J.