Strop v. Hughes
| Citation | 101 S.W. 146,123 Mo.App. 547 |
| Parties | CHARLES F. STROP, Appellant, v. THOMAS R. HUGHES, Respondent |
| Decision Date | 04 February 1907 |
| Court | Kansas Court of Appeals |
Appeal from Cass Circuit Court.--Hon. Nick M. Bradley, Judge.
REVERSED AND REMANDED.
Cause reversed and remanded.
Whitsitt & Jarrott for appellant.
(1) In answer to the first objection appellant contends that under the law a corporation is required to affix its seal only to such instruments as had to be sealed by a natural person before private seals were abolished by statute. 1 Purdy's Beach on Corporation, section 104 and cases cited; 1 Morawetz on Private Corporations, section 338; Water Company v Muscatine, etc., Company, 85 Iowa 112; Jones on Chattel Mortgages, section 102; City v. Railroad, 77 Mo 184; Jones on Chattel Mortgages, sec. 51; Sherman v Fitch, 98 Mass. 59. (2) Appellant agrees with respondent as to the correct rule of description of property covered by a chattel mortgage. That is, that the mortgage must point out the subject matter of it so that a third person by its aid together with the aid of such inquiries as the instrument itself suggests may identify the property covered. Bank v. Jenkins, 18 Mo.App. 651; Evans v. Turner, 143 Mo. 638. The record shows that this property was taken from the premises described in the mortgage and was the property of the Humphrey Hereford Cattle Company. (3) Respondent now for the first time attacks the consideration of appellant's mortgage. The mortgage was made upon sufficient consideration and the amount advanced was in excess of the value of the property mortgaged. Milling Company v. Burnes, 152 Mo. 374; Wall v. Beddy, 161 Mo. 625. (4) Appellant complied with the statute when he delivered the instrument to the recorder of deeds. A filing within the meaning of the law is a delivery to the proper officer and it is immaterial as to appellant what disposition is thereafter made of the instrument. This rule is now well settled in this State. Baker et al. v. Henry, 63 Mo 519; State v. Hockaday, 98 Mo. 593; Building, etc., Mill Co. v. Huber, 42 Mo.App. 438, and cases cited; Rowe v. Schertz, 74 Mo.App. 608; McDermott v. Dwyer, 91 Mo.App. 188; Stevenson v. Colopy, 48 Ohio State 237. (5) The evidence tended to show the appellant had gone into actual possession of the property and under the law this would have cured all the irregularities, if any, in the execution and filing of the mortgage. It was, therefore, error for the court to sustain a demurrer to appellant's testimony.
J. W. Porter and W. D. Summers for respondent.
(1) The court did not exclude the chattel mortgage as stated by the counsel for the appellant. However, the court erred in not excluding it, but this error was after-ward corrected by the court finding that the mortgage was not the act of the Humphrey Hereford Cattle Co., for the reason that, first, the seal of the corporation was not attached. R. S. 1899, sec. 982. (2) This mortgage is void as to attaching creditors for indefiniteness of description of the property which it purports to cover. Jones on Chattel Mortgages, sec. 55; 15 Ency. of Law, p. 958 c. and note 1; 88 Mo.App. 296; 81 Mo. 532; 29 Mo.App. 204, 384, 394; 37 Mo.App. 631, 643. (3) This mortgage is void as against creditors for the reason that it was given for the purpose of hindering and delaying creditors and was without consideration. (4) This mortgage is void as to these execution creditors, whether prior or subsequent, although they had actual notice of it, because it had not been filed as required by law and hence did not operate as constructive notice until after the levy of the executions and attachments.
This is an action in replevin, the plaintiff basing his claim to the property in controversy by virtue of a certain chattel mortgage dated July 16, 1903, from a corporation known as the Humphrey Hereford Cattle Company. The defendant had possession of the property by virtue of a seizure under a writ of attachment issued in a suit pending by a creditor against the said cattle company.
The mortgage in question was executed by William Humphrey, the president and general manager of the corporation, with scroll attached as a seal. Notwithstanding the mortgage was received in evidence, defendant contends that it was incompetent, and if so plaintiff was not entitled to recover in any event, and that any other error, if there be any, in the trial of the cause would be of no importance. It is the contention of defendant that such instruments executed by a corporation must be under its corporate seal. Plaintiff's contention is that the law requiring official seals of corporations to be affixed to instruments in writing has application only to conveyances of real estate. And section 982, Revised Statutes 1899, requires that the common seal of the corporation shall be attached to such conveyances. Section 893, Revised Statutes 1899 (Revised Statutes 1889, section 2388) dispensed with the use of private seals except as to corporations. Prior to this, it was necessary for all conveyances of real estate or any interest therein to be sealed by the grantor. [Sec. 2401, R. S. 1889.]
In a case before the Supreme Court construing the statutes as they practically exist at this time, it was held that a corporation was not bound to have a common seal and that a conveyance of real estate by the corporation in question, it having no such seal, was valid. The construction was that the statute doing away with the necessity for private seals did away with the necessity for a corporate seal required in the cases of conveyance of real estate where the corporation had no seal "and preserves the necessity for a seal in all cases where the corporation has a seal." And the court said, speaking of the conclusion formed: "This is the only construction that can be placed upon all the sections of the statute which will harmonize them and give effect to all of them without striking down any of them, and this construction is clearly the proper one when it is borne in mind that a corporation is authorized but not required to have a common seal." [Pullis v. Pullis, 157 Mo. 565, 57 S.W. 1095.]
The question here, although a construction of those statutes is involved, is somewhat different, for there is no statute requiring the common seal of a corporation to mortgages of personal property. At common law a mortgage conveying personal property was not a specialty, and was not required to be under seal. [Jones on Chattel Mortgages, sec. 102.] If neither at common law nor by statute a corporation is required in making mortgages on personalty to have and use a common seal, we cannot see upon what principle of reasoning it is to be said that its acts are invalid because it omitted the use of its common seal. The only advantage we can perceive for the use of the corporation seal in such cases is that it would dispense with proof of the execution of the instrument.
The mortgage was not acknowledged, but was filed on the 16th day of July, 1903, in the recorder's office and spread upon the record. On the 25th day of February, 1904, the mortgage was withdrawn from the recorder's office and returned on the 12th of May next thereafter. The recorder stated that he kept only one file book for mortgages, those that were acknowledged and those that were not were entered in the same book. Attached to the copy spread upon the records the recorder made the following entry: "Filed for record, 16th July, 1903, at 2 p. m. J. T. BOSWELL, Recorder."
The plaintiff's suit was begun on the 4th day of April, 1904. The attachment was issued on the 11th day of February, 1904, and the property was seized thereunder by the sheriff the day following. It is contended that the mortgage was void as to creditors because it was neither acknowledged and recorded, nor was either the original or a copy thereof filed with the recorder as required by section 3404, Revised Statutes 1899. It is not contended by plaintiff that the recording of the unacknowledged instrument was a compliance with the statute so as to give it effect as a recorded mortgage, but he insists that the copy on the record with the indorsement that the original instrument had been filed for record was a substantial compliance with the statute.
The question has not been decided in this State so far as we are informed. In the State of Ohio, the statute required that a mortgage or a true copy thereof be forthwith after its execution deposited with the township clerk or the county recorder, as the case may be, in order to make it valid as to creditors unless there be an immediate delivery of the goods at the time the same is executed. The statute further provided that the party depositing the instrument might have it recorded at his own expense. In a case involving a construction of the statute, the court held where neither the original nor a true copy thereof was on deposit, but where it was recorded, that there was a filing within the meaning of the act. [Stevenson v. Colopy, 48 Ohio St. 237.] The chief distinction between that case and the one here is that under the Ohio statute it was made the duty of the recorder to record any chattel mortgage at the expense of the mortgagee at his request, while our statute does not authorize the recorder to record a mortgage unless it has been acknowledged or its execution proved. But the Ohio statute, it will be...
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