H. Holzinger et al. v. James H. Gilbert.

1. Bill of Sale—By a Husband to his Wife Acknowledged before a Notary Public, Void.—A bill of sale of personal property, made by a husband to his wife (they living together), acknowledged before a notary public, is void.

Replevin.—Appeal from the Superior Court of Cook County; the Hon. Nathaniel C. Sears, Judge, presiding. Heard in this court at the October term, 1895.

Affirmed.

Opinion filed January 22, 1896.

M. L. Thackaberry, attorney for appellants.

Johnson & Morrill, attorneys for appellee.

Mr. Justice Waterman

delivered the opinion of the Court.

This was an action of replevin, the question presented *97being as to the validity of a bill of sale of personal property made by a husband to his wife, they living together, the same being acknowledged before a notary public.

Section 9 of the chapter of the statutes relating to husband and wife, is as follows: “ Provided, that where husband and wife shall be living together, no transfer or conveyance of goods and chattels between such husband and wife shall be valid as against the rights and interests of any third person, unless such transfer or conveyance be in writing, and be acknowledged and recorded in the same manner as chattel mortgages are required to be acknowledged and recorded by the laws of this State, in cases where the possession of the property is to remain with the mortgagor.”

The statutory direction in regard to the acknowledgment of chattel mortgages is (section 2 of chapter 95): “ Such instrument shall be acknowledged before a justice of the peace of the town or precinct where the mortgagor resides, or if there be no acting justice in the town or precinct,” etc.

The judgment of the Superior Court, holding the bill of sale invalid as against the rights of an execution creditor of the husband, is affirmed.