27 N.M. 613 | N.M. | 1922
OPINION OP THE COURT
This is an action in replevin involving the right of possession of cattle. Both Nations and Lowenstern base their claim upon chattel mortgages executed by J. P. Airhart, and the question for determination is the priority of these mortgages. The district court held that the Lowenstern mortgage was prior, and from that holding and the judgment rendered accordingly this appeal is prosecuted.
' The Lowenstern mortgage was dated April 27, 1918, and recorded April 80, 1918. Nations relies upon several mortgages; the last two being dated June 3, 1918, and recorded August 8, 1918. Since these are subsequent to the date and recording of the Lowenstem mortgage, and no question is raised as to the sufficiency of that mortgage in either respect, any rights of Nations superior to it must arise under instruments executed earlier and filed and recorded so as to constitute notice. In determining the facts, the first step therefore is to ascertain the condition of the records as to existing mortgages at the time the Lowenstem mortgage was taken.
On Decerhber 1, 1917, J. P. Airhart executed a chattel mortgage to secure a note for $5,874.50. December 5, 1917, Nations sent this mortgage, with a copy, to the county clerk. He did not request that it be recorded, and it was not recorded. The original was returned to him by the clerk; the copy being retained. The copy which remained in the file was not a true one, since it lacked both the signature of the mortgagor and his acknowledgment.
On the same date a similar mortgage was executed to secure $11,207.55, which, with a copy, was also sent to the county clerk for filing December 5, 1917, the original mortgage not being recorded, but returned, and the copy retained in the files. This copy was likewise defective in not showing either a signature or an acknowledgment.
August 7, 1917, another mortgage was executed to secure $12,756.90. Like the two described above, the original was not recorded, and, while the copy sent to the clerk and retained in his files showed the signature of the mortgagor, there was no acknowledgment.
There was a fourth mortgage dated December 14, 1916, but since it had been renewed by, or the note secured by it included in, one of the mortgages above described, and it is not relied upon in appellant’s brief, it needs no further consideration. In passing, however, it may be observed that, like the later ones, it was not recorded, and the copy of it lacked both signature and acknowledgment.
On April 27, 1918, the date of the Lowenstem mortgage, an examination of the office of the county clerk would have disclosed no mortgages of record, and there would have been found three instruments in the form of mortgages, two, however, bearing no signature and no certificate of acknowledgment, and one showing a signature, but not acknowledged. Was this situation sufficient to put Lowen-stern on notice of the existence of the actual mortgages? The decision of this case turns upon the solution of this question, for it is conceded that he had no actual knowledge or notice.
The statute governing the matter is chapter 71, Laws 1915, as amended by chapters 86 and 74, Laws 1917. The provisions applicable may be summarized as follows:
Sec. 2. All chattel mortgages shall be acknowledged by the mortgagor in the same manner as conveyances affecting real estate, and shall be filed or recorded as hereinafter required. The failure to so file or record any such instrument shall render it void as to subsequent mortgages in good faith.
Sec. 3. Every chattel mortgage, or a copy thereof, shall be filed in the office of the county clerk of the county in which the property affected is situated.
Sec. 4. The county clerk shall indorse on the mortgage or copy so filed the time of receiving it and retain it in the files of his office. If the instrument is recorded, the mortgagee may withdraw the filed original whenever a true copy thereof is filed with the county clerk.
Sec. 5. The county clerk shall keep a book in which shall be entered a minute of all such instruments, which shall be ruled off into separate columns with headings as follows: Time of Reception, Name of Mortgagor (alphabetically arranged), Name of Party in Whose Favor the Instrument is Drawn, Date of Instrument, Amount Secured, When Due, Property Mortgaged, and Remarks; and the proper entry shall be made under each of said headings. Under the heading of Property Mortgages it shall be sufficient to enter a general description of the property mortgaged, and the particular place where located, if set forth in such instrument.
Sec. 6. Every such chattel mortgage or other instrument of writing, filed in accordance with the provisions of this act, shall have full force and effect given to the recording of an instrument affecting real estate.
Sec. 9. The county clerk may charge and collect for certifying a copy of any such original chattel mortgage or other instrument of writing so filed or recorded, the sum of twenty-five cents and no more, where such copy is presented with such original chattel mortgage or other instrument of writing at the time same is filed or recorded, and not more than seventy-five cents where such copy is prepared by the county clerk. In cases where a copy of such chattel mortgage or other instrument in writing is filed in the first instance, instead of the original, the county clerk shall be entitled to charge the sum of 26 cents for certifying upon such original the fact that a true copy thereof has been duly filed, with the date of such filing, and such certificate, so indorsed upon such original chattel mortgage or other instrument of writing, shall be received in evidence as sufficient proof of the filing of a true copy of such chattel mortgage or other instrument in writing in the office of the county clerk so certifying.
The effect of these provisions may be further summarized, so far as important here, as follows:
The mortgagee may file either the original or a copy of his mortgage.
He may or may not have the filed instrument recorded.
If the original is filed, it may be withdrawn only when recorded and upon filing a true copy in its stead.
Failure to file or record the instrument renders it void as to subsequent mortgagees in good faith.
How then has appellant complied with this statute? It provides that unless the mortgage is recorded, or it or a copy is filed, it shall be void as to subsequent mortgagees in good faith. The Nations mortgages were not recorded. The originals were not filed in conformity with the statute. No copies were filed; the instruments relied upon not being copies of anything. It follows that the statute was not obeyed, its penalty becomes effective, and the mortgages are void as against Lowenstern, who is admittedly a subsequent mortgagee in good faith.
What has been said disposes of the only points argued in appellant’s brief. It follows that the judgment of the district court should be affirmed; and it is so ordered.