14 Utah 472 | Utah | 1897
This action was brought to recover damages against the defendant for the unlawful conversion of certain personal property, upon which the plaintiff held a chattel mortgage made by Herman Jacobs to secure the payment of the sum of $400, by virtue of which plaintiff claimed to be the owner of, and entitled to the possession of, the property. The defendant denies the conversion, but admits the taking and sale of the property, as United States marshal, under an execution issued upon a judgment against Herman Jacobs and Minnie Jacobs for the sum of $222 and costs, and alleges that the mortgage was placed upon the property to hinder, delay, and defraud the creditors of the plaintiff, and that the mortgage was void because the parties thereto had failed to take, subscribe, and attach to said mortgage the oath required by the statute. Upon the trial the plaintiff was called as a witness, and identified the note and chattel mortgage in question, under which he claimed title, and offered the same in evidence. The defendant objected to the introduction of the mortgage in evidence for the reason that it was incompetent, and was not executed in compliance with the laws of this state with reference to chattel mortgages. The objection was sustained, and the mortgage
Tbe following is a copy of one of tbe affidavits referred to:
“Tebbitoby of Utah, )
“ County of Salt Lake, J ss‘:
'“J. Petrovitzky, of Salt Lake City, territory of Utah, being first duly sworn, says that be is tbe mortgagee named in tbe foregoing mortgage, and that tbe said mortgage is made in good faith for tbe purpose of securing tbe amount therein named, and without any design to delay or defraud creditors.
“J. Petbovitzkv.
“Sworn to and subscribed before me this 25th day of July, A. D. 1896.
“H. S. MoCallum,
“Notary Public.”
Section 2801, Comp. Laws Utah, 1888, provides: “No mortgage of personal property shall be valid as against tbe rights and interests of any person (other than the parties thereto), unless tbe possession of such personal property be delivered to, and retained by tbe mortgagee, or unless tbe mortgage provide that tbe property may remain in possession of tbe mortgagor, and be accompanied by an affidavit of tbe parties thereto, or in case any party is absent an affidavit of tbe parties present, and of tbe agent or attorney of such absent party, that tbe same is made in good faith to secure tbe amount
The rule of the common law, that statutes in derogation thereof are to be strictly construed, has no application in this state, and the Code should be liberally construed with a view to effect its objects and to promote justice. Section 2987, Comp. Laws 1888.
We are of the opinion that the court erred in rejecting the evidence offered. The judgment of the court below is reversed, with costs, and a new trial granted.