Marcum v. Coleman

Harwood, J. This is an action of claim and delivery for the recovery of the possession of sixty-five head of horses, described in the complaint. At the time of the alleged wrongful taking complained of, the defendant Lew Coleman was the sheriff of Deer Lodge County, aud defendant, James Johnson was his deputy. As shown by the record, the possession of said property was taken by said sheriff and his deputy under certain valid writs of attachment and execution duly issued in certain actions at law by two creditors of Samuel Ward to recover payment of debts. The plaintiffs in this action base their claims to the possession of said property upon a chattel mortgage, executed and delivered to them by said Samuel Ward, prior to the levy under said writs. All the facts involved in this action are made certain by a concise statement of facts agreed upon with reference to the pleadings, and the point of controversy submitted to the court for determination is concisely expressed in said agreed statement. We quote therefrom: “The validity of plaintiffs’ mortgage is not disputed, except as to the sufficiency of the affidavit thereto, and the fact of defendants being officers, etc., and of the regularity of the process under which they levied upon the property in controversy, is not disputed. The question- of law submitted [77] to the court upon Avhich it is agreed that the case may be decided is whether or not the affidavit of good faith, etc., made to the plaintiffs’ chattel mortgage, as shoAvn by the copy thereof attached to the complaint, is sufficient to comply Avith the laws of Montana Territory in force when said mortgage was made, and to make said chattel mortgage good and valid as against the rights-of the creditors of the mortgagor, Avhere the possession of the property remained with the mortgagor after the execution of the mortgage.” The statement of facts shows that Samuel Ward executed to Marcum and Lennon, about the twelfth day of September, 1887, the chattel mortgage in question, and “ that at and before the date of the execution of said chattel mortgage the plaintiffs herein were partners doing business under the firm name and style of Marcum and Lennon.” The affidavit in question reads as follows: — “ Territory oe Montana, County oe Deer Lodge. ) / ° “ Samuel Ward and Marcum and Lennon, the parties to the foregoing chattel mortgage, being severally and duly SAVorn each for himself, says: That the said chattel mortgage is made in good faith to secure the amount named therein, and without any design to hinder or delay the creditors of the said mortgagor. (Signed) “ Samuel Ward. “Marcum & Lennon. “Subscribed and sworn to before me this twelfth day of September, A. D. 1887. “T. B. Mannix, Justice of the Peace.” The statute requiring a chattel mortgage to be accompanied by an affidavit provides as folloAvs: “No mortgage of goods, chattels, or personal property shall be valid as against the rights and interests of any other person than the parties thereto, unless the possession of such goods, chattels, and personal property be delivered to and retained by the mortgagee, or the mortgage provide that the property may remain in the possession of the mortgagor, and be accompanied by an affidavit of all the parties thereto, or, in case any party is absent, an affidavit of those present, and of the agent or attorney of such absent party,-that the same is made in good faith to secure the amount named [78] therein, and without any design to hinder or delay the creditors of the mortgagor, and be acknowledged and filed as hereinafter provided.” (§ 1538, Comp. Stats.) Turning to the mortgage in question to find who the “parties thereto” are, we find that the instrument recites as follows: “This indenture, made the twelfth day of September, 1887, in the year of our Lord one thousand eight hundred and eighty-seven, between Samuel "Ward, first part, of Helmville, Mont., and Marcum and Lennon of the second part.” We further notice, by a careful examination of the mortgage, that throughout the instrument wherever the mortgagees are referred to, except in one instance, they are termed the “parties of the second part.” It is insisted by counsel for respondents that the combination of names, “Marcum and Lennon,” appearing in the mortgage, and in the affidavit thereto, is the designation of the partnership firm of Marcum and Lennon, and hence the affidavit does not show that all the parties to the mortgage joined in the affidavit in person, if present, or if absent, by agent. In the case of Butte Hardware Co. v. Sullivan, 7 Mont. 307, McLeary, J., in delivering the opinion of the court, says: “But even if the mortgage had been made between the firms of Maxwell and Price on the one haud, and Hoge, Brownlee and Company on the other, still, we could not go beyond the affidavit and look to the mortgage itself to support or explain the affidavit, unless the mortgage had been referred to in the affidavit. The affidavit must stand of its own strength, or fall of its own weakness.” The case of Leopold v. Silverman, 7 Mont. 266, is referred to as authority for that declaration, and again, in the case of Baker v. Power, 7 Mont. 326, the same language is quoted with approval. We approve that proposition as based upon sound reason. The affidavit is the verifying condition required by statute to accompany the mortgage, where possession of the chattels is left with the mortgagor, and must be made by all the parties thereto, either in person or by agent, and must show, under the sanction of an oath, the required facts independently of the mortgage. In that sense the affidavit alone will be weighed, and found sufficient or wanting according to its own terms. The language above quoted from Butte Hardware Co. v. Sullivan must have [79] been used in that sense, and is not to be construed to deny a comparison of the affidavit with the mortgage to find whether “all the parties” to the mortgage join in making the required affidavit either in person, if present, or by agent, if absent. This is conclusively shown by an examination of the case, where the language quoted was used, supra, for we find the learned judge saying: “ It will be observed by reference to the chattel mortgage set out in the transcript that the parties thereto are described as William T. Price and James A. Maxwell, partners under the firm name of Maxwell and Price, parties of the first part, and William L. Hoge, Malcolm B. Brownlee, Francis E. Sargeant, Marcus Daly, and K,. C. Chambers, partners under the firm name of Hoge, Brownlee and Company, parties of the second part.” Looking to the mortgage in the case at bar, and to the affidavit accompanying it, we find in neither any reference to the fact that a copartnership firm, under the name and style of Marcum and Lennon, is in existence. In the mortgage the name of Samuel Ward is stated as the first party, and Marcum and Lennon as the parties of the second part. In the affidavit it is recited that “Samuel Ward and Marcum and Lennon, the parties to the foregoing chattel mortgage, being severally duly sworn, each for himself, says.” We must look to evidence aliunde these two instruments to explain the fact that a partnership exists between the parties of the second part to said mortgage of the name and style of “Marcum and Lennon.” That would clearly be contrary to the doctrine held in the cases above cited and quoted from. Under these decisions then, in determining the sufficiency or insufficiency of said affidavits, we must discard the fact that a firm existed composed' of the plaintiffs under the firm name of Marcum and Lennon, because that fact does not appear in describing the parties of the second part in the mortgage or in the affidavit. The affidavit in question is attacked on the ground that the names “Marcum and Lennon” set forth in the affidavit is the name of a copartnership firm, composed of the mortgagees, and that a copartnership existence cannot take an oath any more than a corporation, as a corporate existence, could appear before an officer, and be sworn. But if we dismiss from consideration [80] the fact that such a copartnership existed, the argument against the sufficiency of said affidavit based on that ground cannot apply. It is admitted that the mortgage in question is valid in all respects, except as to the legal sufficiency of the affidavit accompanying it. The mortgage, as we have seen, describes the mortgagees as “Marcum and Lennon,” without reference to the fact that that combination of names represented a copartnership. The magistrate certifies in the affidavit that “Samuel Ward and Marcum and Lennon, the parties to the foregoing chattel mortgage, being severally duly sworn, each for himself, says,” etc. In passing upon this affidavit, under the rules of construction laid down in sections 629 to 634, inclusive, first division, Compiled Statutes, and in the cases cited, supra, it does not seem reasonable to us to hold that where the justice certified that “Samuel Ward and Marcum and Lennon,” the same parties named in the mortgage as the party of the first part and the parties of the second part, “being duly sworn, each for himself, says,” should be construed to mean that only one of the latter parties appeared to take the oath, or that only one appeared, and he undertook to swear for the two, or that only one appeared and he undertook to swear for a copartnership firm, which is not mentioned either in the affidavit or mortgage. Such a construction we believe would be contrary to the reasonable.import of the language used by the magistrate in certifying the affidavit. We therefore hold that the affidavit is sufficient. The construction placed upon the affidavit in the case at bar is supported by the case of Randall v. Balter, 20 N. H. 335. The facts involved in that case, as well as the law requiring the affidavit, are very much like the facts in the ease at bar and the statute governing. The order denying plaintiffs’ motion for a new trial is reversed, and judgment in favor of defendants is hereby set aside, and said action is remanded for further proceedings in conformity to the stipulations of parties, and the views herein expressed. Blake, C. J., and De Witt, J., concur.