115 Ind. 345 | Ind. | 1888
Lead Opinion
The complaint of Eufus K. Syfers and Frank. McBride, partners, doing business under the firm, name of Syfers, McBride & Co., stated that, on the 19th day of December, 1884, Sidney L. Walker and Ward Walker were engaged in the grocery business, as partners, in the city of Greenfield, in this State, in the name and style of Walker
A demurrer was sustained to the complaint, and the defendants had final judgment upon demurrer. The record, therefore, presents only the question of the sufficiency of the complaint.
Section 722, R. S. 1881, provides that “ Goods and chattels pledged, assigned, Or mortgaged as security for any debt or contract, may be levied upon, and sold on execution against the person making the pledge, assignment, or mortgage, subject thereto, and the purchaser shall be entitled to the possession, upon complying with the conditions of the pledge, assignment, or mortgage.”
In the construction of this section this court has frequently held that the officer making a levy on the mortgagor’s interest or equity of redemption in mortgaged personal property, is entitled to possession of the property for the purpose of making sale of such interest or equity of redemption, as against the mortgagee, as well as the mortgagor. Sparks v. Compton, 70 Ind. 393; Hackleman v. Goodman, 75 Ind. 202; Louthain v. Miller, 85 Ind. 161; Slifer v. State, ex rel., 314 Ind. 291.
Adhering, as we do, to that construction of the section, it is nevertheless true that the officer making the levy must exercise due care for the protection of the mortgagee’s interest
The delivery of an execution to an officer, with directions •not to levy it, is practically equivalent to. no delivery, and hence creates no lien on the personal property of the execution defendant. A direction, therefore, not to levy for a specified time suspends the lien during that time. Freeman Executions, section 206 ; Moore v. Fitz, 15 Ind. 43; Alabama G. L. Ins. Co. v. McCreary, 65 Ala. 127; Hickman v. Caldwell, 4 Rawle, 376 (27 Am. Dec. 274); Speelman v. Chaffee, 5 Col. 247.
A mortgagee of personal property may, in this State, become the purchaser of such property at a public sale, and, when the property is struck off and sold to him, he is entitled to be considered and treated as its owner so long as the sale is permitted to stand. Emmons v. Hawn, 75 Ind. 356 ; Lee v. Fox, 113 Ind. 98.
From the averments of the complaint in this ease we infer that the executions in the hands of Slifer created no lien on the mortgaged property prior to its sale by the mortgagees, and that no levy was in fact made until after the sale and until the mortgagees had become the absolute owners of the property, which was too late to be effective. It follows that the possession of the property taken by Bradley, Binford and Slifer after the sale was in derogation of the rights of Syfers and McBride, and consequently wrongful. The demurrer to the complaint ought, therefore, to have been overruled.
The'judgment is reversed, with costs, and the cause remanded for further proceedings.
Rehearing
On Petition for a Rehearing.
As has been seen, the complaint alleged that Walker Brothers executed to the plaintiffs a chattel mortgage on their stock of groceries and other personal property to secure the debt therein described; that it also alleged that the plaintiffs in due time caused the mortgage to be recorded in the recorder’s office of Hancock county, the county in which Walker Brothers resided, and in which the mortgaged property was situate.
The point was made at the hearing that the complaint was fatally defective in its failure to aver that the mortgage was properly acknowledged before it was recorded; but, regarding the point as wholly immaterial to the merits of the appeal, we did not make any distinct ruling upon it. In their petition for a rehearing the appellees have renewed the point with much earnestness and apparent confidence,,and insist that we shall now consider it.
The presumptions are all in favor of a public officer having done his'duty in every matter concerning which he has taken official action.
The allegation that the mortgage was recorded in' the proper recorder’s office, consequently carried with it the implication that the mortgage had been duly prepared for record before it was recorded. In legal contemplation, the entry of an unacknowledged deed or mortgage on the recorder’s books does not constitute a recording of the instrument. Taylor v. City of Fort Wayne, 47 Ind. 274; Westerman v. Foster, 57 Ind. 408 ; Carver v. Carver, 97 Ind. 497.
The acknowledgment of a deed or mortgage has reference only to the proof of its execution and to its preparation for record, and forms no part of the instrument itself. Cray v. Ulrich, 8 Kans. 112.
If the mortgage in question was not acknowledged before it was recorded, the objection can be made, and will regularly arise upon the evidence at the trial. If an acknowledgment can not be shown the record will be of no avail.
Other questions are re-argued, but they have already received sufficient consideration.'
The petition for a rehearing is overruled.