4 S.D. 495 | S.D. | 1894
This was an action to foreclose a chattel mortgage. Judgment was rendered for the defendants, and the plaintiff appeals.
Lauren K. Lee, mortgagor, and Frank H. Peavey, Charles T. Peavey and Edgar C. Michener, composing the firm of F. H. Peavey & Co., as subsequent mortgagees, were made defendants. It is alleged in the complaint, in substance, that the mortgage upon which the action was brought was executed on the 9th day of April, 1890, and was given to secure an indebtedness from said Lee to the plaintiff of $2,366.25; that subsequently, on May 3, 1890, the said Lee executed to the said F. H. Peavey & Co. a chattel mortgage, including the same property, to secure the sum of $20,000; that at the time the said mox-tgage was executed to said F. H. Peavey & Co., that firm had actual notice that said Lee had executed a prior mortgage on the property to the plaintiff to secure the indebtedness due from him to it. On the trial the defendant Lauren K. Lee, being called as a witness in behalf of the plaintiff, testified that he executed the chattel mortgage in controversy, and also to facts tending to prove that said firm had actual notice that he (witness) had executed a chattel mortgage on the property to
The only question'presented for our decision-is, w'as the chattel mortgage executed by defendant Lee to the plaintiff a valid mortgage, as between the parties thereto, and as against P. H. Peavey & Co., subsequent mortgagees, assuming they had actual notice of such mortgage? The learned counsel for appellant contend that our statute relating to chattel mortgages does not require that such a mortgage, as between the parties thereto, and as to subsequent mortgagees with actual notice of such prior mortgage, shall be witnessed, but - that such witnesses are only required to entitle the mortgage to be filed in the office of the register of deeds, and operate as constructivé notice of the same. The learned counsel for the respondents insists that a chattel mortgage, to be valid for any purpose, must be signed in the presence of two persons, who shall sign the same as witnesses thereto, and- that, as the pretended chattel mortgage offered in evidence in this case was without witnesses it was absolutely void. Respondents rely upon Section 4384, Comp. Laws, which reads as follows: “A mortgage of personal property must be signed by the mortgagor in the presence of two persons, who must sign the same- as witnesses thereto, and no further proof or acknowledgment is required to admit it to be filed.” Section 4346, Comp. Laws, reads as follows: “Mortgage is a contract, by which specific property is hypothecated for the performance of an act, without the necessity of a change of possession. A mortgage of real property can be created, renewed or extended only- by writing, executed with the formalities required in the case of a grant of real property.” It will be observed that this section provides that a
The counsel for respondents have cited a number of authorities in support of their position, holding that a deed not properly witnessed does not convey the legal title. We have access only to a few of these, and we shall only briefly refer to those we have been able to consult. The case of Merwin v. Camp, 3 Conn. 35, is inapplicable as an authority in the case at bar, as the statute under which that decision was rendered contained negative words that could not have properly disregarded by the court, at least in a common law action. The cases of Courcier v. Graham, 1 Ohio 330, and Patterson v. Pease, 5 Ohio 190, seem to support the contention of respondents, as does the case of Clark v. Graham, 6 Wheat. 577; but these were all common law actions, and decided under the statute of Ohio of 1805, which we have not been able to examine, except one section
Counsel for respondents further contend that the history of the legislation of the late territory upon the subject of chattel mortgages clearly indicates that Section 4384 in the code of 1887 was intended to make the attestation of two witnesses essential to the validity of a chattel mortgage for any purpose, but an examination of the history does not lead us to that conclusion. The code of 1870 contained the following section