Eaton State Bank v. Flesher

Mb. Presiding Justice Grow delivered the opinion of the court. Suit in replevin was begun by appellee to recover from Flesher as sheriff certain property seized by him under an execution upon a judgment against T. F. Curry. Declaration was in the cepit and detinet with a count in trover. Pleas were filed denying the taking and the detention. A special plea was filed averring that a judgment was rendered in favor of the First National Bank of Moweaqua and against T. F. Curry for the sum of $1,686.85, and for costs and that an execution was issued upon said judgment and delivered to the defendant Andrew Flesher as sheriff and that by virtue thereof he levied upon the property described in the affidavit and writ of replevin, and that it was the property of Curry and not of Baton State Bank. Upon a trial before the court without a jury, the court found the issues for the plaintiff in trover upon a stipulation of facts, and assessed the plaintiff’s damages at $1,486.47, and for costs against defendant First National Bank, and defendants appealed to this court. Whatever interest plaintiff had in the property seized by the sheriff was derived through a chattel mortgage executed by Curry with due formality. It is not contended that fraud in fact or as a matter of law affects the rights of the parties. The chattel mortgage conveying to plaintiff the property in controversy was made to secure two notes payable to it. Both notes were for the sum of $1,366 and both dated February 28, 1925, the date of the mortgage. One of the notes was due and payable on August 28,1925, and the other was due and payable by its terms February 28, 1926. The chattel mortgage, duly executed and acknowledged, recited that the notes bore date and matured as above stated. The mortgage bore date February 28 and was acknowledged before a justice of the peace March 4. It was filed for record in the recorder’s office March 7,1925. As recorded, the second note is described as being due February 28, 1925. The title of plaintiff (appellee) resting upon the chattel mortgage, the second note due under it being erroneously described of record as being due February 28, 1925, instead of 1926, shall it fail through the negligence or misprision of the recorder? That is the only question presented by the record in this case. An examination of the Chattel Mortgage Act discloses that such mortgages require for validity and legal effect certain acts to be done by the parties to the transaction. By section 1 [Cahill’s St. ch. 95, ft 1] such mortgage shall be invalid as against the rights and interests of third persons unless possession shall be delivered to and remain with the grantee, or the instrument shall provide for the possession of the property to remain with the grantor and the instrument is recorded and acknowledged as in the act directed; “and every such instrument shall, for the purposes of this Act, be deemed a chattel mortgage.” Section 2 [Cahill’s St. ch. 95, U 2] requires such instrument to be acknowledged before a justice of the peace of the county in which the mortgagor resides, or before certain other officers specified; and that the acknowledgment may be made either by the mortgagor or a person duly authorized by the mortgagor to act as his attorney in fact. The form of certificate of acknowledgment is prescribed, and in this case was followed, and the proper entry of acknowledgment made in the justice’s docket. By section 4 [Cahill’s St. ch. 95, [f 4]: ‘ ‘ Such mortgage * * * or other conveyance of personal property acknowledged as provided in this Act shall be admitted to record by the recorder of the county in which the mortgagor shall reside at the time when the instrument is executed and recorded,” and shall,_ thereupon, if bona fide, be good and valid from the time it is filed for record until 90 days after the maturity of the entire debt or obligation, or the extension thereof.as provided by the act, with provisions for extending the maturity of the mortgage by compliance with the requirements by the mortgagor and mortgagee. Sections 8, 9, and 10 [Cahill’s St. ch. 95, H 9, 10 and 11] provide for release' of such mortgages by steps to be taken by the parties to the mortgage, with penalties for failure to comply with the requirements for release. If the rights of the respective parties to this transaction are governed by their conduct, and if their conduct was in harmony with the law regulating it, there can be no basis for the contention that the recorder’s misconduct.affected their rights in any way. To render the mortgage valid as against third parties, the mortgagor was required to and did sign and acknowledge it before a justice of the peace. He complied with these requirements. The justice made the certificate of acknowledgment in due form and made the entry without error on his docket. It was delivered to the mortgagee who delivered it to the recorder for record. By that act it became and was filed and was from that time effectual as a chattel mortgage. That was the result of the conduct of the parties to the transaction because the statute so declares. The entire transaction is statutory and the mortgagee and mortgagor complied with it in every particular. " While the statute declares the lien of the mortgage shall be effectual from the date of its filing, and the recorder is required to record it, yet when the mortgagee has complied with" the statute so far. as lies in his power, the mortgage is regarded as recorded from the time it was deposited for that purpose. The mortgage is not affected by the errors or misprisions of the recording officer. 11 C. J. 534, § 224. To the last proposition decisions from several States are cited, including Pease v. Fish Furniture Co., 176 Ill. 220; Jesse French Piano & Organ Co. v. Meehan, 84 Ill. App. 262; Hamilton v. Seegar, 75 Ill. App. 599; Wolf v. Hunter, 10 Ill. App. 32. In the notes to the section supra are many illustrations of the application of the rule that the mortgagee is not to be prejudiced by the mistake of the recording officer. The cases cited so far as accessible have been examined and support appellee’s contention here. Pease v. Fish Furniture Co., 176 Ill. 223, decided in 1898, sufficiently illustrates the reason for the rule. In that case the error occurred in the action of the justice of the peace taking the acknowledgment and making the entry in his docket. The entry was erroneous as to the name of the mortgagee, the amount of the indebtedness, and the description of the property mortgaged. An execution creditor, as in this case, was attacking the title of the mortgagee. After discussing the object of the Chattel Mortgage Act and the purpose and effect of requiring the acknowledgment before an entry by the justice in his docket, it is said: “The mortgages were drawn in proper form, duly acknowledged as required by statute and placed on record, and the mere fact that the justice failed to make a proper entry on his docket could not invalidate the mortgages. The mortgagee has no control over the justice in regard to the entry to be made on his docket, and should not be made to suffer on account of his incompetency or mistakes. This court has held in at least three cases, (Cook v. Hall, 1 Gilm. 575, Merrick v. Wallace, 19 Ill. 486, and Nattinger v. Ware, 41 id. 245) that the failure of the recorder of deeds properly to record a deed will not invadidate the title of the grantee who has done all that is required of him by law in leaving the deed for record. The principle decided in those cases applies here. The mortgagee did all that could be required on its part, and it should not be prejudiced by the mere failure of the justice of the peace to make a proper entry on his docket. ’’ Other cases cited by counsel for appellee, with that quoted, support the rule. A very pertinent statement of the reasons for the rule is contained in note 9 (a) 11 C. J. 535: “The neglect of clerical duties by the recorder * * * does not affect the mortgagee. These are matters over which he has no control. * * * The clerk is not his agent or servant for whose negligence he is responsible, but he is the officer designated by law to perform the duties of receiving, filing and recording the instrument. It would be a harsh rule to punish an individual, who in the prosecution of a right, has done everything that the law required him to do, for omission by a public officer to comply with forms prescribed to him as his duty.” Case & Co. v. Hargadine, 43 Ark. 144, 148. The propositions of law supporting the judgment as held by the circuit judge trying the case are in harmony with the principles we hold to be applicable to the facts and the judgment is therefore affirmed. Affirmed. '