Frank v. Miner

Citations

• 50 Ill. 444

Syllabus

<p>1. Chattel mortgages—before whom to be acknowledged. Where personal property is permitted to remain with the mortgagor, under a provision to that effect contained in the mortgage, the instrument must be acknowledged before a justice of the peace in the precinct in which the mortgagor resides, or the mortgage will be void as to creditors and purchasers. If there be no justice of the peace in the precinct, or none capable of acting, the parties are left as at the common law, under which all sales and pledges of personal property were void as to creditors and purchasers, unless the possession accompanied and went with the title or to the pledgee.</p> <p>2. Same—of notice by recording or otherwise. Where a mortgage on chattels is not executed and recorded in conformity with the statute, although spread upon the record, it is not notice to creditors and purchasers, nor will creditors and purchasers be affected by any other notice of such mortgage, although it may be valid and binding between the parties.</p> <p>3. Same—of subsequent possession by mortgagee. Although the possession of personal property by the mortgagor may be fraudulent, as against creditors and purchasers, by reason of the mortgage not having been properly acknowledged, still if the mortgagee actually obtains the possession under a clause in the mortgage permitting him to do so, before any other rights attach as respects the property, he will hold the same position he would if the possession had passed to him at the time the mortgage was given.</p> <p>4. So, where there were two mortgagees of the same property, by different mortgages, both of which provided for the possession to remain with the mortgagor, but both void as to creditors and purchasers, by reason of not being acknowledged before the proper officer, if the junior mortgagee first obtains the possession, he will hold it under his mortgage, as against the prior mortgagee, although he had notice of the prior mortgage.</p>