Gorham v. Summers
| Decision Date | 22 May 1878 |
| Citation | 25 Minn. 81 |
| Parties | James W. Gorham v. George Summers |
| Court | Minnesota Supreme Court |
This action was brought in the district court for Hennepin county to recover possession of a steam-engine and other property. Both parties derived title under one James C. Gardner, the plaintiff as assignee of a chattel mortgage made by Gardner to one Lewis Edds; the defendant, by subsequent purchase from Gardner. At the trial, before Young, J., a jury being waived the facts relating to the filing of the mortgage appeared to be as stated in the opinion. It further appeared that at the time of the purchase by defendant, the property was in Gardner's possession, who assured him there was no encumbrance on it; and the defendant, before purchasing caused an examination to be made of the index of chattel mortgages in the office of the city clerk, which examination failed to disclose the existence of plaintiff's mortgage and defendant bought the property, and paid full value for it, with no actual notice of the mortgage, and believing the property to be free from liens. Upon the findings of the court, judgment was entered for the plaintiff, and the defendant appealed.
Judgment affirmed.
Lochren, McNair & Gilfillan, for appellant, cited Barney v. McCarty, 15 Iowa 510; Sawyer v. Adams, 8 Vt. 172.
Atwater & Babcock and Geo. B. Young, for respondent.
In this action of claim and delivery, the plaintiff seeks to recover possession of certain personal property, as assignee of an overdue chattel mortgage. Defendant's first point upon this appeal is that there is no evidence to identify the engine claimed in the complaint with that described in the mortgage. No engine is claimed in the complaint, except that which is described in the mortgage. The answer admits that a certain engine in defendant's possession is "the same sought to be recovered in this action, and not other or different," and the defendant himself testifies that, as evidence of his title, he received "a bill of sale of the engine * * described in the complaint and answer." This is a sufficient identification of the engine described in the mortgage and claimed in the complaint, and that possessed by the defendant, as one and the same.
Defendant's second point is, that the mortgage was not filed so as to be notice to a subsequent and bona-fide purchaser of the mortgaged property, like himself. The finding of the court below is, that on June 5, 1874, the day of its date, the mortgage was duly assigned by the mortgagee, Lewis Edds, to the plaintiff; that the written assignment "was pasted or fastened upon the back or outside of said chattel mortgage, and the two instruments, thus fastened together, were, on the twelfth day of June, 1874, left by plaintiff with the city clerk of * * Minneapolis (in which city said property was situated), to be filed as required by law, and where the same continued to remain until the trial of this cause. Said city clerk neglected to endorse upon said mortgage the number of the same and time of reception, as required by statute, but entered in the record book kept for such purposes the following record, with the headings indicated, to wit:
When Filed.
9 a. m., June 12, 1874.
Lewis Edds.
James W. Gorham.
1041
When Filed.
When [ILLE-
GIBLE WORD]
9 a. m., June 12, 1874.
June 5, 1874.
$ 1,600
As per notes.
"Instead of entering the names of the mortgagor and mortgagee as appearing in said mortgage, said clerk entered and indexed the names of the assignor and assignee of the same." It is further found that on or about September 28, 1875, defendant, without any actual notice of the mortgage, purchased of the mortgagor all the property described therein for $ 8,000; that prior to completing his purchase he caused the records in the said city clerk's office to be examined, to ascertain if there were any chattel-mortgage liens upon the property, but that, "by reason of said irregularity in the entry of said mortgage," he failed to find any encumbrance, and made such purchase as aforesaid, paying therefor the full purchase price, and taking a bill of sale of the property.
Gen St. c. 39, § 1, provides that "every mortgage on personal property, which is not accompanied by an immediate delivery," etc., shall be void, unless, among other things, "the mortgage, or a true copy thereof, is filed as hereinafter provided." Section 2 reads as follows: Section 3, Laws 1870, c. 59, and by Laws 1875, c. 50, provides that "every mortgage filed in pursuance of this chapter shall be held and considered to be full notice, to all parties interested, of the existence and conditions thereof; but shall cease to be notice, as against the creditors of the mortgagor and subsequent purchasers and mortgagees in good faith, after the expiration of two years from the filing thereof:" * * * provided, that, when the debt secured by the mortgage does not become due within two years from the date of the mortgage, the holder of the same may, within thirty days before the expiration of the two years, "file a copy of such mortgage, together with an affidavit * * * stating the amount claimed to be unpaid upon" the mortgage, and "the filing of such copy and affidavit shall extend the effect of the original filing" for one year. Section 4 provides that "a copy of any such mortgage or copy filed and endorsed as aforesaid," when duly certified, shall be received in evidence with like effect "as the original mortgage or copy filed, and endorsement." Section 8, referring to the notice of intention to foreclose provided for in section 7, enacts that ...
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