Vorenberg v. Bosserman.

• Court: New Mexico Supreme Court
• Writing for the Court: *439 PARKER, J.
• Citation: Vorenberg v. Bosserman, 17 N.M. 433, 130 P. 438, 1913 NMSC 5 (N.M. 1913)
• Decision Date: 14 January 1913
• Parties: VORENBERGv.BOSSERMAN.

17 N.M. 433

130 P. 438

VORENBERG

v.BOSSERMAN.

Supreme Court of New Mexico.

Jan. 14, 1913.Rehearing Denied March 8, 1913.

Syllabus by the Court.

An acknowledgment in the following form, “This mortgage was acknowledged before me by _____, this _____ day of _____, A. D. 19--,” held not to be a substantial compliance with the statutory requirements, and to be invalid.

A chattel mortgage, not properly acknowledged, is not entitled to record, and furnishes no constructive notice.

An acknowledgment is not necessary to the validity of a chattel mortgage between the parties.

The words, “also the wool clipped from said ewes,” held sufficient to cover wool afterwards clipped from same.

Sections 2361, 2362, C. L. 1897, require the recording of a chattel mortgage, as against a subsequent attaching creditor.

Appeal from District Court, Mora County; D. J. Leahy, Judge.

Attachment by Simon Vorenberg, trading as the Vorenberg Mercantile Company, of wool as the property of O. S. and O. G. Keysor, partners as Keysor Bros., and Elijah Bosserman intervenes, claiming the property under a chattel mortgage. From a judgment for the intervener, the plaintiff appeals. Reversed and remanded, with instructions.

Comp.Laws 1897, §§ 2361, 2362, requires the recording of a chattel mortgage as against a subsequent attaching creditor.

W. J. Lucas, of East Las Vegas, and S. A. Foutz, of Wagon Mound, for appellant.

W. R. Holly, of Springer, for appellee.

PARKER, J.

Appellants levied an attachment on a quantity of wool owned by O. S. and O. G. Keysor, partners as Keysor Bros. Appellee intervened, setting up a chattel mortgage upon certain property described therein as follows: “(1,500) Fifteen hundred head of improved New Mexico 3 year old ewes, together with increase, and branded ‘O’ on right hip. Also wool clip from above ewes. The above ewes are now located on Keysor Bros. ranch, 11 miles southeast of Wagon Mound, Mora county, New Mexico, together with all increase and offspring of said live stock.” The wool levied upon was wool clipped from the sheep mentioned in the mortgage after its execution and before the attachment. The mortgage was acknowledged in the following form: “State of Colorado, County of Denver--ss: This mortgage was acknowledged before me by O. G. Keysor this 11th day of April, A. D. 1911. Bernard C. Bub, Notary Public.”

The appellants had no actual notice of the mortgage, although the same was regularly recorded. Appellants demurred to the intervening petition as follows: “That the said petition of intervention does not state facts sufficient to constitute a cause of action for the following reasons, to wit: (a) That the instrument upon which said petition of intervention is based and alleged therein to be a chattel mortgage, and which is referred to therein, and a copy attached thereto as Exhibit A thereof, is not acknowledged as required by the laws of the territory, now state, of New Mexico, and the acknowledgment thereof and thereon fails to fulfill the requirements of the laws of the territory, now state of New Mexico. (b) That, because of the defective acknowledgment aforesaid, the said instrument, alleged in said petition of intervention, was not entitled to be placed of record in the office of the probate clerk of Mora county, New Mexico, and the recordation thereof did not constitute any notice to the plaintiff herein, and the lien of plaintiff's attachment is superior to such alleged chattel mortgage, even though the same should be valid, which validity is hereby denied. (c) That the same alleged instrument, which is Exhibit A attached to the petition of the intervener, even if not for other reasons invalid, is void as to the property attached by the plaintiff herein for the reasons that the property covered and included in said alleged chattel mortgage is not described with sufficient certainty.” The court overruled the demurrer, and the appellants elected to stand on the same. They afterwards stipulated, among other things, some of the facts stated above. The defendants in the case defaulted.

The court awarded judgment in favor of intervener, and directed the money realized from the sale of the wool (sold by stipulation of the parties) to be paid over to him. Appellants appeal from this judgment.

[1] 1. It is first argued by appellants that the mortgage is not properly acknowledged. The requirement of acknowledgment is to be found in section 2361, Compiled Laws of 1897, in the following language: “That hereafter all chattel mortgages, or other instruments of writing, having the effect of a mortgage or a lien upon personal property, shall be acknowledged by the owner or mortgagor and recorded in the same manner as conveyances affecting real estate. * * *” This section was afterwards amended by section 1 of chapter 14 of the Laws of 1907, but in a particular not affecting the consideration of this case. The original requirements as to the contents of the certificates of acknowledgment, in conveyances of real estate, are to be found in section 3949 of the Compiled Laws of 1897, being a part of an act passed in 1852 and carried through the compilations of 1865 and 1884, and being in the following language: “The certificate of acknowledgment shall express the fact of the acknowledgment being made, and also that the person making the same was personally known to at least one of the judges of the court, or to the officer granting the certificate, to be the person whose name is subscribed to the writing or a party to it, or that it was proved to be such person by the testimony of at least two reliable witnesses.” Since that time, forms of acknowledgment have been provided by statute and declared to be sufficient in cases of all written instruments, except commercial paper. See sections 3945 and 3947, C. L. 1897. The form prescribed in section 3945 is as follows: “On this _______ day of _______, before me personally appeared _______, to me known to be the person described in and who executed the foregoing instrument, and acknowledged that he executed the same as his free act and deed.”

It can hardly be contended, it seems to us, that the acknowledgment of the mortgage in question is a substantial compliance with the requirements of either section 3945 or 3949. Counsel cite, in support of the sufficiency of the acknowledgment, Wilson v. Quigley, 107 Mo. 98, 17 S. W. 891, in which case is cited Hughes v. Sloan, 102 Mo. 77, 14 S. W. 660. In both of those cases the omission to state that the person acknowledging the instrument was known to the officer was held not to vitiate the acknowledgment. But in those cases the certificate contained a recital which showed that the party acknowledging the instrument was known to the officer. But in this case there is no recital that the mortgagor acknowledged that he executed the instrument, or that the person who appeared before the notary was the person described in, and who executed, the instrument. The recital is simply that the instrument was acknowledged by O. G. Keysor. This will not do. This is not a substantial compliance with the statute.

[2] 2. It is next urged by appellant that the mortgage, not being acknowledged, was not entitled to record, and consequently gave no constructive notice. The proposition is evidently sound. Section 18 of chapter 62 of the Laws of 1901 expressly provides that an instrument, not duly acknowledged, shall not be entitled to be filed and placed of record, nor considered of record, though so entered. Under this statute, the instrument was not entitled to record, and, under the prevailing doctrine, gave no constructive notice.

[3] 3. It is further urged that the absence of a valid acknowledgment rendered the instrument void. The argument is clearly unsound. The general doctrine is that, in the absence of statute expressly so providing, an acknowledgment is no part of an instrument, and is not necessary to its validity. 1 Cyc. 513; Kitchen v. Schuster, 14 N. M. 164, 176, 89 Pac. 261. The argument is based upon the language of section 2361 of the Compiled Laws of 1897, where the imperative form “shall” is used. But nothing is contained in the act declaring the instrument to be void in case it is not acknowledged. It is to be further noted that a later statute (section 17 of chapter 62 of the Laws of 1901) provides that an acknowledgment shall not be necessary to the execution of any instrument, unless expressly so provided by statute. Section 2361 cannot be held to...