Brunswick-Balke-Collender Co. v. Brackett

• Decision Date: 01 June 1887
• Citation: 33 N.W. 214,37 Minn. 58
• Parties: BRUNSWICK-BALKE-COLLENDER CO. v BRACKETT.
• Court: Minnesota Supreme Court

37 Minn. 58

33 N.W. 214

BRUNSWICK-BALKE-COLLENDER CO.vBRACKETT.

Supreme Court of Minnesota.

June 1, 1887.

(Syllabus by the Court.)

In order to uphold a certificate of acknowledgment, resort will be had, if necessary, to the whole instrument to which it is attached, and, whenever substance is found, obvious clerical errors and technical omissions will be disregarded.

Where the statute merely requires an instrument to be acknowledged, without prescribing any form of certificate, or providing what it shall contain, it is sufficient if it fairly appears therefrom that the person who executed the instrument appeared in person before the officer, and acknowledged it as his act and deed.

An allegation that a person executed a mortgage “whereby he mortgaged” certain property, implies that he owned it, or at least had a mortgageable interest in it.

In an action for damages for the wrongful conversion of personal property it is not necessary that the complaint allege the value of the property, if it contain a proper allegation as to the amount of plaintiff's damages.

Appeal from municipal court, city of Minneapolis.

Action to recover damages for the conversion of certain personal property in which plaintiff claimed an interest under a chattel mortgage thereof given to it as security by one J. H. Huntington. While the debt, to secure which the mortgage was given, was still unpaid, defendant, as sheriff of Hennepin county, levied upon and sold the said mortgaged property, under an execution, as the property of said Huntington. Defendant demurred to the complaint, the material allegations of which appear in the opinion, on the ground that it did not state facts sufficient to constitute a cause of action. From an order overruling his demurrer, defendant appealed, assigning as error (1) this action of the court; “(2) the mortgage was not acknowledged according to law, and was not notice to creditors; (3) there is not any allegation in the complaint that the property mortgaged was owned by J. H. Huntington, or that he had any interest therein, or that he had any authority to mortgage the same; (4) there is not any allegation that plaintiff is the owner and entitled to the immediate possession of the property; (5) there is not any allegation in the complaint that the property taken and converted was of any value whatever.”

A. B. Jackson, for Brunswick, etc., Co., respondent.

C. A. Ebert and John H. Long, for Brackett, appellant.

MITCHELL, J.

The statute provides “that no mortgage of goods or chattels shall be notice of any fact, as against the creditors of the mortgagor, etc., unless the same is acknowledged before some officer authorized to take acknowledgments of deeds.” Gen. St. 1878, c. 39, §§ 3, 5. Objection is made to the sufficiency of the certificate of acknowledgment attached to the chattel mortgage under which plaintiff claims title. This certificate, under the hand and seal of the notary, is as follows: “State of Minnesota, Hennepin County-ss.: I, Robert Christensen, a notary public in and for said county, do hereby certify that this mortgage was duly acknowledged before me by the above-named J. H. Hennepin, the mortgagor therein named, and entered by me this twenty-sixth day of June, 1885.”

J. H. Huntington is named as mortgagor in the body of the instrument, which purports to be executed by him, his signature immediately preceding the certificate. It is the policy...