Advance-Rumely Thresher Co. v. Wagner
| Decision Date | 04 December 1928 |
| Docket Number | No. 8072.,8072. |
| Citation | 29 F.2d 984 |
| Parties | ADVANCE-RUMELY THRESHER CO., Inc., v. WAGNER. |
| Court | U.S. Court of Appeals — Eighth Circuit |
William B. Sloan, of Des Moines, Iowa (W. C. Strock, of Des Moines, Iowa, on the brief), for appellant.
Glenn D. Kelly, of Davenport, Iowa, for appellee.
Before STONE and VAN VALKENBURGH, Circuit Judges, and PHILLIPS, District Judge.
April 5, 1927, one Marlen J. Lund purchased a tractor from appellant and executed and delivered a chattel mortgage to secure a balance of the purchase price. July 26, 1927, Lund filed a petition in bankruptcy and was adjudged a bankrupt. Appellee was appointed trustee August 20th following. Meantime the tractor was used by the bankrupt on road work, and early in August was abandoned by him on a public highway, where it was exposed to damage from weather and theft. Thereupon appellant, through its agent, took possession of the tractor, and had possession thereof on the 30th day of August, 1927, on which date appellant filed an application for authority to retain possession of the same under its claim of mortgage for the satisfaction of the unpaid balance due from the bankrupt. In said application it was alleged that in such case applicant would suffer a loss of approximately $1,000, and that there was no possibility of equity therein to the bankrupt estate.
For answer the trustee denied the validity of the mortgage as against the trustee in bankruptcy, and of the lien sought to be created thereby, and demanded that appellant's application be refused and that the property be surrendered to the trustee for proper disposition in the administration of the estate. October 5, 1927, appellant, still retaining possession of the tractor, filed a substituted petition for reclamation and to establish and enforce an equitable lien. In this petition it reasserted the validity of the mortgage, that the balance of the purchase price was due and unpaid, and prayed an order permitting it to retain possession of the tractor and to reclaim the same from the custody of the law and of the trustee, to establish an equitable lien in the premises and for other and further relief. September 9, 1927, by stipulation a special master had been appointed by the court to settle the issues, make findings of fact and of law, and with the usual powers of a special master in chancery. In his report the master recommended that an order be entered denying to the petitioner right of possession, ownership, or lien, and that the trustee be held to have the right of possession free and clear of all liens. To this finding exceptions were filed and overruled; the report of the master was approved, and a decree entered accordingly. This ruling was based upon the ground that the title of the person before whom the acknowledgment was made was not contained in the certificate of acknowledgment. As conceded by appellee, the sufficiency of the certificate of acknowledgment to the chattel mortgage is the only ultimate question involved.
A preliminary question presented is whether this appeal is from a ruling in a proceeding in bankruptcy, and thus requiring an allowance of such appeal in advance by this court, or whether it is a controversy in bankruptcy proceedings which requires no such allowance. It is clear, however, that:
"A judgment of a court of bankruptcy that a chattel mortgage upon the alleged property of the bankrupt is voidable by his trustee, that it entitles the mortgagee to no lien upon the property and to no preference in payment out of its proceeds, is a final decision of a controversy arising in bankruptcy proceedings." Dodge v. Norlin (C. C. A. 8) 133 F. 363; Baker Ice Machine Co. v. Bailey (C. C. A. 8) 209 F. 844; Mullen v. Warner (C. C. A. 4) 11 F.(2d) 62; Hopkins v. Nat'l Bank et al. (C. C. A. 5) 293 F. 884; Hewit v. Berlin Machine Works, 194 U. S. 296, 24 S. Ct. 690, 48 L. Ed. 986; In re Smith-Flynn Commission Co. (C. C. A. 8) 292 F. 465; Standard Computing Scale Co. v. Adam (C. C. A. 8) 287 F. 347; Taylor v. Voss, 271 U. S. 176, 46 S. Ct. 461, 70 L. Ed. 899; Harrison v. Chamberlin, 271 U. S. 191, 46 S. Ct. 467, 70 L. Ed. 897; 8 Remington on Bankruptcy (3d Ed.) §§ 3673, 3688.
We proceed, then, to the merits of the case, which involve the sufficiency of the acknowledgment. The challenged certificate of the notary is as follows:
The statutes of Iowa provide that no mortgage of personal property, where the mortgagor retains actual possession thereof, is valid against existing creditors or subsequent purchasers, without notice, unless a written instrument conveying the same is executed, acknowledged like conveyances of real estate, and duly recorded. Respecting acknowledgments, section 2948 of the Iowa Code of 1897 provides:
Section 10094 of the Iowa Code, in force at the time this mortgage was executed, is identical in language. Section 2959 of the Code of 1897 reads as follows:
The Codes of 1924 and 1927 contain section 10103 as follows:
It will be perceived that section 2959 and section 10103 are substantially identical, except for the parenthesis inserted in the latter form, to wit, "(insert title of acknowledging officer)." The contention of appellee is that, by the provision that "the name of the state and county where the acknowledgment is taken shall precede the certificate, and the signature and official title of the officer shall follow it," it is established that the signature and official title of the officer is no part of the certificate; that section 10094 provides that the certificate must set forth "the title of the court or person before whom the acknowledgment was made"; that the place where this title must be...
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