The purpose of this action was to recover the value of personal property alleged to have.been wrongfully taken from the plaintiff and sold upon execution. The cause
The facts are not in dispute. They are as follows: On the 9th day of February, 1910, the membеrs of a partnership, doing business in the firm name and style of “The Clarkston Box and Manufacturing Company,” executed and delivered to one Elizаbeth Thompson their promissory note for $£,000, and to secure the payment of the same, executed, on the same day, a chattеl mortgage covering certain personal property. This mortgage did not contain an affidavit of good faith as required by the laws оf this state, and was never recorded in the auditor’s office, as required by the statute in order to be effective as notice. The notе and mortgage, by assignment, became the property of the plaintiff on or about April 10, 1911. Thereafter, with the consent of the mortgagоr, the plaintiff took possession of the mortgaged property. Subsequent to the execution and delivery of the mortgage to Elizabеth Thompson, and prior to the date when the plaintiff took possession of the property under the mortgage, the First National Bank оf Clarkston loaned to the partnership the sum of $£,500, taking a promissory note therefor. This note not being paid when due, suit was begun thereon аnd judgment rendered in favor of the bank and against the copartnership on April 8, 191£. Under this judgment, execution was issued and the property sold. Frоm these facts, it appears that the bank became a general creditor prior to the time when possession of the property was taken by the plaintiff under the mortgage, and that, subsequent to the time when the possession was taken, the bank secured a judgment against the copartnership and levied upon and sold the property covered by the mortgage.
There is but one question in this casе which, stated in the language of the appellant in its brief, is this:
“Will the taking possession of chattel mortgaged property by a mortgageе under and by virtue of a chattel mort*67 gage which has never been filed, indexed, or recorded, give such a mortgagee a prior lien on the property superior to a general creditor who gave credit to the mortgagor subsequent to the execution of such mortgage and prior to the mortgagee taking possession without notice, express or implied, of said mortgage or of the indebtednеss sought to be secured thereby, and which creditor, having reduced his claim to judgment, seized the property on execution subsequent to the mortgagee taking possession but prior to any judgment or decree foreclosing the mortgage?”
A chattel mortgage not recоrded as required by statute (Rem. & Bal. Code, § 3660 [P. C. 349 § 3]) while void as to creditors who have acquired some form of lien upon the mortgaged property, is, nevertheless, valid as between the mortgagor and the mortgagee. In Heal v. Evans Creek Coal & Coke Co.,
“Whether properly recorded or not, the mortgage was valid as between the mortgagor and mortgagee, and it is only creditors who have acquired some form of lien upon the mortgaged property that can question the right of the mortgagee to foreclose against such mortgaged property.”
Where the mortgage is executed and delivered, and prior to the time of its being recorded, persons other than the mortgagee become genеral creditors of the mortgagor, but do not become lien creditors until after the mortgage is filed for record, the rights of the mortgagee are superior to those of such general creditors. The mortgage speaks as of the date it is placed of record. In Pacific Coast Biscuit Co. v. Perry,
“Thе conceded facts in this case show that the Pacific Coast Biscuit Company had no specific lien upon any property оf the mortgagor at the time the mortgage was filed for record on September 7, 1911. Up to that time, under many decisions of this court, the mortgage was void as to creditors. But when it was filed for record, and when the mortgagee took possession of the property, as he did in this сase, his lien became perfect and superior to the claim of the other creditors having no specific lien. We think there сan
“In so far as the case of Willamette Casket Co. v. Cross Undertaking Co., supra, may be said to hold that an unrecorded mortgage is absolutely void and may not become valid when properly filed, that case must be overruled. Under the conceded facts in this case, we think it is clеar that the appellant, by reason of recording his mortgage prior to the judgment of the Pacific Coast Biscuit Company, obtained a first lien upon the property covered by the mortgage; and the sale thereof under his mortgage, being regular, passed title to thе appellant and, that Oswald had no further interest in the property.”
Where the mortgagee takes possession of the property covered by an unrecorded chattel mortgage, the mortgage speaks as of the date when the possession was taken. Frоm that time, the mortgage is valid as to all creditors who have not, prior thereto, acquired a right to the specific property or a lien thereon. First Nat. Bank of Fergus Falls v. Anderson,
In the last case cited, speaking upon this question it was said:
“And if the mortgagee, whose mortgage is not recorded, аnd who does not have possession of the property, records his mortgage with the consent of the mortgagor, or takes possession of the property with the consent of the mortgagor, his mortgage then has the force and effect of a mortgage exeсuted on the day on which it is filed for record, or on' which the property is delivered. It is the same then as though a new mortgage had been еxecuted by the parties and recorded. The old mortgage is then given life and force and effect by the j oint action of both pаrties, and hence must be held to be valid from that time on, as against all persons.”
The judgment will be affirmed.
Crow, C. J., Ellis, Chadwick, and Gose, JJ., concur.