Harlow v. Birger

Caton, C. J. The question here presented is, to determine the validity or effect of a chattel mortgage upon some stacks of wheat which were levied upon by virtue of an execution against the mortgagor. The claimant offered in evidence the mortgage, to which was attached a certificate of acknowledgment, and of the record of the mortgage, but there was no proof as to whether the justice of the peace had entered in his docket the inventory of the property, as the law requires. After providing for the acknowledgment of the mortgage, the statute proceeds, “ And the said justice shall also keep upon his docket, a memorandum of the same as follows, viz.:” then follows a form of the entry containing an inventory of the property, and the question is, whether it was necessary for the claimant to show affirmatively that the justice had made this entry on the docket. We think it was not. This was a duty imposed upon the justice by the law, and the presumption is that he did his duty by making the entry. The law does not contemplate that any certificate of this entry upon the docket, shall be attached to the mortgage. The only certificate required is in this form: “ This mortgage was acknowledged before me, by A. B. (the mortgagor) this-day of -18—• ” ; and the third section says, “ Any mortgage of personal property so certified, shall be admitted to record by the recorder of the county in which the mortgagor shall reside at the time the mortgage is made, acknowledged and recorded, and shall thereupon, if bona fide, be good and valid from the time it is so recorded,” etc. Here the law requires but two conditions to make the mortgage prima facie valid. One is the acknowledgment, and the other is recording. Both these were complied with in this case, and. the statute in express terms declares it valid under such circumstances. What authority had the court to declare it void and reject it ? Even if it were affirmatively proved that the justice never had made the entry on his docket, which he is required to do, we should still have difficulty in holding the mortgage invalid on that account, in the face of this express language of the statute. If any one was injured by the want of such entry, the justice no doubt would be liable to him for the damage. But in this case there is nothing to show that the justice did not make the necessary entry, and in the absence of proof, the presumption is that he did, so that the question does not necessarily arise, as to what effect the want of such entry would have upon the validity of the mortgage. The court erred in rejecting the mortgage, and for that reason the judgment is reversed, and the cause remanded. Judgment reversed.