In re Burnett

BLODGETT, District Judge. I do not think the objection well taken, for the reason that the mortgagee had taken possession before any other person had acquired any lien or vested right, and, therefore, .the irregularity in acknowledging the mortgage is not material. But there is certainly room for grave doubt whether there is any such defect in the execution of this mortgage as is claimed. By the statute of this state (Rev. St. tit. “Chattel Mortgages,” § 2, it is provided that chattel mortgages to be valid must be acknowledged before a justice of the peace of the district where the mortgagor resides. And the supreme court of this state held, in 26 Ill. 431, that this means the same election district. But by the new constitution of this state, and the laws in force at the time this mortgage was made, the justices of the peace of this city were appointed by the governor, and no special districts within the city are allotted or assigned any particular justice. It therefore seems to me, an acknowledgment of a chattel mortgage before any justice of the peace residing in the city, by a mortgagor residing in the city, must be held to be a substantial compliance with this law. The city is, to all intents and purposes, the district of the justice. If this were not the rule, it would be practically impossible for many persons living in the city to give a chattel mortgage on their property. It is well known that almost all the offices of the justices of the peace in this city are situated within a small radius, and near the central portion of the city, and as many of the wards and election districts in the outskirts of the city are entirely without any justice of the peace, how would it be possible for persons living there to make a chattel mortgage which could be of any value or validity? For these reasons I do not consider this objection to the mortgage well taken. And if this mortgage was properly acknowledged, or, in other words, was a valid mortgage, then the mortgagor had the right to take possession in case of default, without regard to his knowledge of the solvency or insolvency of the maker. It appearing that Groot, the petitioner, is a bona fide holder for value, the order will be, that the assignee pay his claim in full from the proceeds of the sale of the mortgaged property now in his hands.