{ "id": 8721167, "name": "Gasconade Development Company v. McIlroy Bank & Trust Company", "name_abbreviation": "Gasconade Development Co. v. McIlroy Bank & Trust Co.", "decision_date": "1938-01-17", "docket_number": "4-4890", "first_page": "404", "last_page": "407", "citations": [ { "type": "official", "cite": "195 Ark. 404" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "110 S. W. 2d 690", "category": "reporters:state_regional", "reporter": "S.W.2d", "opinion_index": 0 }, { "cite": "197 S. W. 683", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "130 Ark. 287", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8719706 ], "opinion_index": 0, "case_paths": [ "/ark/130/0287-01" ] }, { "cite": "259 S. W. 3", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "163 Ark. 91", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1383865 ], "opinion_index": 0, "case_paths": [ "/ark/163/0091-01" ] }, { "cite": "259 S. W. 5", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "163 Ark. 88", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1383863 ], "opinion_index": 0, "case_paths": [ "/ark/163/0088-01" ] } ], "analysis": { "cardinality": 308, "char_count": 5411, "ocr_confidence": 0.505, "pagerank": { "raw": 5.676830387708631e-08, "percentile": 0.35466295525337577 }, "sha256": "f91773d6877e05f34b002becdcc85866bf594c09b235f825182db15a06b8fbb2", "simhash": "1:532459107cc8af6c", "word_count": 918 }, "last_updated": "2023-07-14T23:00:53.579177+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Gasconade Development Company v. McIlroy Bank & Trust Company." ], "opinions": [ { "text": "Smith, J.\nAppellant says that the sole question to be decided on this appeal is whether a certain mortgage, executed to the H. Ehrlich & Sons Manufacturing Company, and by the latter assigned to it, was sufficiently indorsed, when filed with the recorder of deeds, to constitute it a lien against a third party upon the property therein described, under \u2022 the provisions of \u00a7 9438 of Pope\u2019s Digest.\nThe outside page or wrapper on the mortgage contained the following* written and printed matter:\n\u201cTo be Piled and not Recorded (printed)\nBaker & Horton (in pencil)\nTo\nH. Ehrlich & Sons Manufacturing Co.\n(printed)\nSt. Joseph, Missouri\nTo be Filed and not Recorded in the Recorder\u2019s Office (printed)\nState of Arkansas, County of Washington\u2014\nI, Henry B. Walker, recorder of deeds of said county, do hereby certify that the within instrument of writing was, at 8 o\u2019clock and 30 minutes a. m., on the 6th day of August, A. D. 1936, duly filed... in this office.\nHenry B. Walker,\nRecorder.\nDeputy. \u2019 \u2019\nSection 9438 of Pope\u2019s Digest prescribes the conditions upon which a mortgage or conveyance of personal property intended to operate as a mortgage may be filed with any recorder in this state so as to become a lien upon the property therein described without being recorded. This is done by indorsing upon the instrument the words, \u201cThis instrument is to be filed, but not recorded. \u2019 \u2019\nThis is a right of statutory creation, and a substan-tia! compliance with the provisions of the statute are sufficient to its establishment.\nA number of cases have declared that a substantial compliance is essential and sufficient to confer upon the mortgagee the benefit of the statute. The cases of Lesser-Goldman Cotton Co. v. Hembree, 163 Ark. 88, 259 S. W. 5, and Leach v. Bald Knob State Bank, 163 Ark. 91, 259 S. W. 3, define what is a substantial compliance.\nIn the first-mentioned case it was held that where a chattel mortgage had a printed indorsement, \u201cThis instrument to be filed, but not recorded,\u201d followed by the mortgagee\u2019s name, likewise printed, there was a sufficient compliance with the statute as to make the mortgage so filed constructive notice to third parties.\nThe Leach case, supra, which cites prior cases on the subject, is to the same effect, and quotes from Continental Supply Co. v. Thomas, 130 Ark. 287, 197 S. W. 683, the statement that \u201cThis court has held that a substantial compliance with the statute is all that is required in order to create a lien good as against strangers on tlie personal property described in a chattel mortgage.\u201d\nBut in the Leach case, supra, it was also said that \u2018\u2018 Our statutes, supra, require the name of the mortgagee to be signed to the words, \u2018 This instrument is to be filed, but not recorded,\u2019 indorsed on the back of the instrument, and whenever the name appears at that place, whether it be written or printed, it is sufficient; and where the mortgagee is a corporation, as it was in the case in hand, it is a sufficient signature, under the statute, where the name of the corporation is printed, following the in-dorsement, where the signature of the corporation must appear.\u201d\nIt appears, therefore, that there must be some in-dorsement upon the instrument by the mortgagee, either written or printed, intended as the signature of the mortgagee following the notation that the instrument is to be filed, but not recorded, indicating that direction and intention on the part of the mortgagee. Here, there is no signature, either written or printed, following the notation that the instrument is to be filed, but not recorded. This may have been, and, no doubt, was, the intention of the mortgagee; but the preservation of the lien as against third parties is a matter of statutory creation, and the statute must be substantially complied with before its benefits can be asserted. The statute, as construed in the Leach case, supra, not only requires that the indorsement as to filing appear upon the instrument, but also that the indorsement be properly authenticated, by the signature of the mortgagee, which may be either written or printed.\nThe recent case of Reitz v. Nowlin, ante p. 16, 110 S. W. 2d 690, passed upon this question, and the opinion sets out the mortgage which was there held to have been filed in substantial compliance with the statute, that decision having been made by a divided court.\nIt will be observed, from the opinion in that case, that following the names of the mortgagor and the mortgagee the name of the mortgagee was written a second time, and that a dotted line was drawn from the second signature to the line under the indorsement that \u201cThis instrument is to be- filed, but not recorded,\u201d and the majority concluded that this was a sufficient indication that the second signature was intended to follow the direction as to filing and to authorize that action. Here, the name of the mortgagee appears only once, and that appearance is in the caption of the mortgage, showing who the parties to it were, and we conclude, therefore, that the court below was correct in holding that the mortgage had not been properly signed to comply with the statute, and thereby constitute it a lien as against a third party.\nThe decree is, therefore, affirmed.", "type": "majority", "author": "Smith, J." } ], "attorneys": [ "O. E. & Earl N. Williams, for appellant.", "Clifton Wade, for appellee." ], "corrections": "", "head_matter": "Gasconade Development Company v. McIlroy Bank & Trust Company.\n4-4890\nOpinion delivered January 17, 1938.\nO. E. & Earl N. Williams, for appellant.\nClifton Wade, for appellee." }, "file_name": "0404-01", "first_page_order": 420, "last_page_order": 423 }