Fahndrich v. Hudson

Mr. Justice Windes delivered the opinion of the court. The only question which we deem necessary to consider is the validity of the chattel mortgage under which appellee claims the right to recover. There is no dispute but that Escanbrook, one of the partners in the firm of Jameson & Escanbrook, failed to sign or acknowledge the mortgage. It was signed in the name of Escanbrook, and also in the name of Jameson & Escanbrook by Malcom Jameson. Escanbrook did not appear before the justice to acknowledge the mortgage, and did not acknowledge it. The acknowledgment was by Jameson alone, although the justice of the peace certified that Escanbrook acknowledged the mortgage. He testified that he told Jame-son to sign his (Escanbrook’s) name to the paper, but says nothing as to directing Jameson to acknowledge the mortgage in his behalf. The certificate of acknowledgment was therefore false in stating that Escanbrook acknowledged the mortgage, and was invalid as to the appellants who were creditors of Jameson & Escanbrook. The statute (2 Starr & Curtis, Ch. 95, Sec. 2) provides, among other things, that the mortgage, before it shall be valid as against the rights and interests of any third person, shall be acknowledged before a justice of the peace of the town or precinct where the mortgagor resides, and recorded in the county where the mortgagor resides, or, in case he is a non-resident of this State, then in the county where the property is situated and kept. In Frank v. Miner, 50 Ill. 444-7, it was held that if either of the requirements of the statute is wanting, while the mortgage is binding between the parties, it is void as to creditors and purchasers. The mortgage was held void because it was not acknowledged before a justice of the precinct where the mortgagor resided. To the same effect is Rehkopf v. Miller, 59 Ill. App. 662. In Long v. Cockern, 128 Ill. 29-36, it was held that as to creditors with actual notice, a chattel mortgage, acknowledged before a notary public, was void. In Burchard v. Kohn, 157 Ill. 583, it was held that a chattel mortgage which was not recorded was void as to creditors, though good as between the parties. In First Nat. Bank v. Baker, 62 Ill. App. 158, a chattel mortgage purporting to be made by the Corey Car & Manfg. Co., and acknowledged by “James B. Bielly, Secy., and Francis W. Corey, Prest., the mortgagors therein named,” was held to be void as against a creditor because the acknowledgment did not purport to be that of the mortgagor. The court said, “We are not to consider what one who reads this certificate might conclude, but what is certified.” In Walton v. Gernand, 65 Ill. App. 19, a chattel mortgage of household furniture, although signed by a husband and wife, and purporting to be acknowledged by both, was held to be void, it being shown that the wife did not in fact acknowledge the mortgage—that the officer’s certificate was false. In McDonald v. Stewart, 83 Ill. 538, where the certificate of acknowledgment to a chattel mortgage regular in form was shown to be false, the mortgage was held to be void, and in deciding the case the court said : “Whether notice was conveyed to parties as well by the instrument, as thus executed, as it would have been had the law been faithfully observed, is not for us to inquire. As between the parties, it was valid without any acknowledgment; but without the acknowledgment it has no effect upon the rights of third parties acting in good faith. In such case actual notice of the mortgage does not prevent the creditor from asserting his right to subject the property to the payment of his debt. (Citing cases.) There is no want of good faith on the part of a creditor in levying upon his debtor’s property included in a chattel mortgage which the law declares void as to him.” See also Aultman v. Guy, 41 Ohio St. 598, and cases cited; and Westlake v. Westlake, 47 Ohio St. 315, in which it was held that the word “ mortgagor,” in a statute similar to the Illinois statute, means each mortgagor. We are therefore of the opinion that the chattel mortgage which is the basis of appellee’s claim, not having in fact been acknowledged by Escanbrock, one of the mortgagors, was void as to appellants because of the falsity of the certificate of the acknowledgment, and the judgment is reversed.