Butte Hardware Co. v. Sullivan

• Decision Date: 11 January 1888
• Citation: 7 Mont. 307
• Parties: BUTTE HARDWARE CO v. SULLIVAN, Sheriff, et al.
• Court: Montana Supreme Court

7 Mont. 307

BUTTE HARDWARE CO

v.SULLIVAN, Sheriff, et al.

Supreme Court of the Territory of Montana.

January 11, 1888.

Appeal from district court, Silverbow county; GALABRAITH, Judge.

S. Dewolfe, for appellants.

W. W. Dixon, for respondent.

MCLEARY, J.

The only question involved in this case is the validity of a certain chattel mortgage executed by James Maxwell and William G. Price to William L. Hoge, M. B. Brownlee, F. E. Sargeant, R. C. Chambers, and Marcus Daily, upon certain property which was afterwards attached at the suit of the plaintiff, the Butte Hardware Co., and sold by the sheriff under the provisions of the chattel mortgage. The court below held the mortgage void as to the plaintiff in this case, on account of defects in the affidavit attached thereto. The affidavit read as follows:

“ Territory of Montana, County of Silverbow-ss.: Malcolm B. Brownlee, William G. Price, and James Maxwell, the parties to the foregoing instrument, being duly sworn, each for himself says that the said instrument is made in good faith, to secure the amount named therein, and without any design to hinder or delay the creditors of the mortgagor.

“W. G. PRICE.

“JAS. A. MAXWELL.

“MALCOLM B. BROWNLEE.

“Subscribed and sworn to before me this eighth day of January, A. D. 1885. [County Seal.] H. S. CLARK, County Clerk.

(Trans. 34.) By WILL L. CLARK, Deputy.”

It is enacted by the statutes of Montana that, where personal property mortgaged remains in the hands of the mortgagor, it shall “be accompanied by an affidavit of all the parties thereto, or, in case any party is absent, an affidavit of those present, and of the agent or attorney of such absent party, that the same is made in good faith to secure the amount named therein, and without any design to hinder or delay the creditors of the mortgagor, and be acknowledged and filed as hereinafter provided.” Comp. St. Mont. § 1538, P. 1068.

The question then is whether or not the affidavit to the chattel mortgage complies with the law as laid down in the statute of this territory, as above quoted. It will be observed, by reference to the chattel mortgage set out in the transcript, that the parties thereto are described as “William G. Price and James A. Maxwell, partners under the firm name of Maxwell & Price, parties of the first part, and William L. Hoge, Malcolm B. Brownlee, Francis E. Sargeant, Marcus Daily, and R. C. Chambers, partners under the firm name of Hoge, Brownlee & Co., parties of the second part.” Trans. 31. It is contended by the appellants that this recital of the parties is the same as if it had been stated that the firm of Maxwell & Price had made the chattel mortgage to the firm of Hoge, Brownlee & Co.; but the respondent contends that the recital of the firm name is mere descriptio personarum, and that the mortgage was really made between the individuals composing the two different firms. We clearly think that the position of the respondent in this regard is correct. It was the individuals, and not the firms, who became parties to the chattel mortgage.

Taking this view of the instrument in regard to the parties, it is hardly necessary to notice the position taken by the appellants that the affidavit should be construed in connection with the mortgage itself....