Gassner v. Patterson

Crocker, J. delivered the opinion of the Court—Cope, C. J. and Norton, J. concurring.

This is an action to foreclose a mortgage, for eight hundred and twenty-four dollars and interest, on two billiard tables, executed by Patterson to the plaintiff, to secure the purchase money thereof. The tables had been sold by a Constable to the defendant Timson for twenty-five dollars each, on an execution against Patterson, and he claims to hold the property free of the mortgage. The evidence shows that Timson, before and after the time of his purchase, had full notice of the mortgage.

It appears that Patterson was the keeper of a saloon, and therefore it is contended that it is not such property as is subject to the [300]provisions of the Chattel Mortgage Act of 1857, as amended in 1861. (Stat. of 1861,197.) The mortgage does not set out the rate of interest to be paid on the sum seemed, or when or where the mortgage debt is payable. In other respects, the Chattel Mortgage Act seems to have been complied with; but the defendant Timson claims that these defects render the mortgage invalid as against him. Sec. 17 of the Statute of Frauds provides that “ No mortgage of personal property hereafter made shall be valid against any other person than the parties thereto, unless possession of the mortgaged property be delivered to and retained by the mortgagee,” with an exception in favor of growing crops, which it is not necessary to notice. This continued to be the law respecting chattel mortgages, up to 1857, when the stringency of its provisions were relaxed in favor of certain kinds of property, among which were “ upholstery and furniture used in hotels and public boarding-houses, when mortgaged to secure the purchase money of the identical articles mortgaged, and not otherwise; ” but neither this clause nor any other in the Act of 1857, or the amendment thereto -of 1861, includes the furniture and fixtures of saloons among the property which may be mortgaged under that act. The first section of that act also provides that “ No mortgage made by virtue of this act, shall have any legal force or effect (except between the parties thereto), unless the residence of the mortgagor and mortgagee, their profession, trade, or occupation, the sum to be secured, the rate of interest to be paid, when and where payable, shall be set out in the mortgage; and the mortgagor and mortgagee shall make affidavit that the mortgage is Iona fide, and made without any design to defraud or delay creditors, which affidavit shall be attached to such mortgage.” Sec. 3 also provides, that “ No chattel mortgage shall be valid (except between the parties thereto), unless the same shall have been made, executed, and recorded, in conformity to the provisions of this act.