Thompson v. Scheid

• Decision Date: 03 July 1888
• Citation: 39 Minn. 102,38 N.W. 801
• Parties: THOMPSON v SCHEID.
• Court: Minnesota Supreme Court

39 Minn. 102

38 N.W. 801

THOMPSONvSCHEID.

Supreme Court of Minnesota.

July 3, 1888.

(Syllabus by the Court.)

Where a chattel mortgage purports to have been acknowledged before a notary public, but the certificate of acknowledgment is not authenticated by a notarial seal, the filing of the instrument is not, under Gen. St. 1878, c. 39, § 3, any notice to subsequent purchasers or mortgagees in good faith. (Following the doctrine of former decisions.)

In replevin the right of a party to an alternative judgment for the value of the property, if a return of it cannot be obtained, is exclusively for his own benefit. He may waive it, and take judgment merely for the return of the property.

The value of the use of personal property, as special damages for its detention, can only be recovered by one who has a right to such use. A mortgagee, after default in the mortgage, has a right to the possession only for the purpose of foreclosure or sale under the mortgage, in order to satisfy the debt secured by it, and not for the purpose of using the property.

Appeal from municipal court of Minneapolis; MAHONEY, Judge.

F. B. Wright and Knappen & Wright, for Scheid, appellant.

Robinson & Baker, for Thompson, respondent.

MITCHELL, J.

Action in replevin to recover a span of horses. Both parties claim through one Geibenhaim; the defendant under a mortgage executed to Glynn & Robinson, July 8, 1886, and filed the next day; the plaintiff under a mortgage executed August 11, 1886, and filed the same day. The property remained in the possession of Geibenhaim, the mortgagor, until December 18, 1886, when it was sold under the first mortgage, and purchased at the sale by one Jonas, who afterwards sold and delivered it to defendant. Both mortgages were executed in good faith and for a valuable consideration. When plaintiff's mortgage was executed, he had no actual notice of the prior one, through which defendant claims. The first mortgage purported to have been acknowledged before one Coffin as notary public, but the certificate of acknowledgment was not authenticated by a notarial seal; none being, as the court finds, “attached to the signature of said Coffin on said acknowledgment.” We are compelled to hold that the case must follow De Graw v. King, 28 Minn. 118,9 N. W. Rep. 636, and Colman v. Goodnow, 36 Minn. 9,29 N. W. Rep. 338. Gen. St. 1878, c. 26, § 3, provides that each notary shall provide himself with the proper official seal, with which he shall authenticate his official acts. Gen. St. 1878, c. 39, § 3, provides that no mortgage shall be notice of any fact, as against the creditors of the mortgagor or subsequent purchasers or mortgagees in good faith, unless the same is acknowledged before some officer authorized to take the acknowledgment of deeds. The acknowledgment includes the due certificate of the fact by the officer taking the same. Without his seal, the notary's certificate is incomplete, and not properly authenticated. Hence the filing of such a mortgage would not, under the statute, be notice of any fact to a subsequent purchaser or mortgagee.

2. The complaint alleges that the value of the use of the property during the time it was in defendant's possession was the sum of $50, and that plaintiff had been...