Barrow v. Conlee

Mb. Justice Burroughs delivered the opinion of the court. This was a replevin suit by appellant against appellees in which appellant claims possession of the chattel property in question under a chattel mortgage given him by the firm of L. S. Baldwin & Co., a partnership composed of L. S. and A. C. Baldwin; while appellees claim the same by virtue of a levy thereon, made by appellee Conlee, as sheriff of Greene county, Illinois, under a distress warrant issued to him by appellee Hackett, for rent admitted to be due the latter by L. S. Baldwin & Co. The facts in this case, in substance, are that appellee Conlee, as sheriff of Greene county, was in possession of the chattel property in question, by virtue of a levy thereon under a valid landlord’s warrant issued to him by appellee Hackett against the firm of L. S. Baldwin & Co., who were indebted to Hackett for the rent he claimed. The chattel property when taken by Conlee was owned by Baldwin & Co., subject to a chattel mortgage given by them to appellant, before the levy, to secure a valid indebtedness owing to him by Baldwin & Co., that was due several months after the levy. This chattel mortgage authorized appellant to take possession of the mortgaged property and sell the same to pay the debt secured thereby, in case the same was levied upon; and the mortgage was in due form signed by the firm of Baldwin & Co., the certificate of acknowledgment thereto being as follows : “ State of Illinois, ) Greene County, f I, Isaac D. Yedder, a justice of the peace in the town of Whitehall, in and for said county, do hereby certify, that this mortgage was duly acknowledged before me by the above named L. S. Baldwin & Co., the mortgagors therein named, and entered by me, this 6th day of January, A. D. 1899. W itness my hand and seal. Isaac D. Yeddeb, [seal.] Justice of the Peace.” The mortgage was duly recorded in the recorder’s office of Greene county, on January 7, 1899, being before the levy under the distress warrant. At the trial of this replevin suit, before the court without a jury, by consent of parties, the court sustained the objections of appellees to the admission of the chattel mortgage in evidence upon the sole ground that the certificate of acknowledgment thereto failed to show the name or names of the member or members of the firm of Baldwin & Co. who made the acknowledgment; and also held by its rulings on the propositions of law submitted by appellant and appellees, that the chattel mortgage was void as to appellees, because the certificate of acknowledgment failed to show the name or names of the member or members of the firm of Baldwin & Co. who made the acknowledgment. Those rulings of the court are urged by counsel for appellant as reversible errors, and at page 7 of his printed brief and argument he says, “ are, we think, the only questions of importance involved in this appeal.^ We think the Circuit Court improperly rejected the chattel mortgage and improperly held in its rulings on the propositions of law, that the same was void as to appellees, by reason of the certificate of acknowledgment failing to show the name or names of the member or members of the firm who made the acknowledgment, because our statute entitled “ Mortgages ” provides that “ The certificate of acknowledgment (of a chattel mortgage) may be in the following form: This (name of instrument) was acknowledged before me by (name of grantor) * * * this-day-, 18—.” Sec. 3, Chap. 95, Hurd’s Ill. Statutes, 1899. The certificate, of acknowledgment of the mortgage literally followed the provisions of the statute by giving the name of the grantor in. the mortgage, as having acknowledged the same, which acknowledgment could be made by one or both of the members of the firm. Nelson v. Wheelock et al., 46 Ill. 25. And the certificate of acknowledcment being that the mortgage was acknowledged by the firm who were the grantors, it in effect said that it was acknowledged at least by one of the members thereof, if not both. Counsel for appellees in their printed brief and argument filed in this court urge upon us that the court committed reversible errors against them in some of its rulings, but as appellees have not assigned any cross-errors upon the record in this case, we will not consider those rulings. Since the Circuit Court improperly rejected the chattel mortgage from the evidence in this case, and improperly held on the propositions of law submitted to it, that the chattel mortgage was void as against appellant, by reason of the certificate of acknowledgment thereof failing to state the name or names of the member or members of the firm of L. S. Baldwin & Co. making the acknowledgment, we reverse its judgment herein and remand the case to that court for another trial.