Hammers v. Dole

Citations

• 61 Ill. 307

Syllabus

<p>1. Chattel mobtqase—-foreclosure in chancery. Where there are several successive liens and incumbrances on the same property, so that a foreclosure, by sale in the ordinary way, could not be made without injury to the adverse claimants, a court of equity may properly be called upon to determine and adjust the rights and equities of the parties.</p> <p>2. Same—void mortgage. The principle would remain the same even if the bill alleged all the mortgages and liens to be void except those of the complainants, since that would compel the court to determine as to the different liens. And if, on the hearing, such an allegation should prove true, it would be inequitable then to dismiss the bill, involve the complainants in costs, and remit them to their remedy at law.</p> <p>3. Acknowledgment—officer interested. A chattel mortgage acknowledged before one of the mortgagees who is a justice of the peace, is void as to other mortgage creditors, for it is against the policy of the law that any officer should perforin either a ministerial or a judicial act in his own beliaif. It would be no answer to this objection that such mortgagee was the only justice in the township.</p> <p>4. Same—officer wanting. Where there is no such officer as the statute prescribes for taking the acknowledgment of a chattel mortgage, or if ho be incompetent, the parties will be remitted to their rights at common law, under which all sales of personal property, unaccompanied by possession in the vendee, are absolutely void. Our statute lias only changed this rule so as to permit the mortgagor to retain possession where the mortgage, properly acknowledged and recorded, provides for it.</p>