{ "id": 5791571, "name": "Joseph Fahndrich, Charles J. Fahndrich and Fred P. Fahndrich, copartners, trading as Fahndrich & Sons, v. Edward Hudson", "name_abbreviation": "Fahndrich v. Hudson", "decision_date": "1898-05-26", "docket_number": "", "first_page": "641", "last_page": "645", "citations": [ { "type": "official", "cite": "76 Ill. App. 641" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "47 Ohio St. 315", "category": "reporters:state", "reporter": "Ohio St.", "case_ids": [ 928435 ], "opinion_index": 0, "case_paths": [ "/ohio-st/47/0315-01" ] }, { "cite": "41 Ohio St. 598", "category": "reporters:state", "reporter": "Ohio St.", "case_ids": [ 919402 ], "opinion_index": 0, "case_paths": [ "/ohio-st/41/0598-01" ] }, { "cite": "83 Ill. 538", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2660447 ], "opinion_index": 0, "case_paths": [ "/ill/83/0538-01" ] }, { "cite": "65 Ill. App. 19", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 5182256 ], "opinion_index": 0, "case_paths": [ "/ill-app/65/0019-01" ] }, { "cite": "62 Ill. App. 158", "category": "reporters:state", "reporter": "Ill. App.", "opinion_index": 0 }, { "cite": "157 Ill. 583", "category": "reporters:state", "reporter": "Ill.", "opinion_index": 0 }, { "cite": "128 Ill. 29", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5413411 ], "opinion_index": 0, "case_paths": [ "/ill/128/0029-01" ] }, { "cite": "59 Ill. App. 662", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 5150163 ], "opinion_index": 0, "case_paths": [ "/ill-app/59/0662-01" ] }, { "cite": "50 Ill. 444", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2606051 ], "opinion_index": 0, "case_paths": [ "/ill/50/0444-01" ] } ], "analysis": { "cardinality": 415, "char_count": 7701, "ocr_confidence": 0.558, "pagerank": { "raw": 4.130664854461091e-08, "percentile": 0.2668893051293724 }, "sha256": "2379de4216f8500a19c3aff09aa749e9f651e04f40c3134c82883b5a34fc63b4", "simhash": "1:d6eff9b75dd27254", "word_count": 1322 }, "last_updated": "2023-07-14T17:12:45.168189+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Joseph Fahndrich, Charles J. Fahndrich and Fred P. Fahndrich, copartners, trading as Fahndrich & Sons, v. Edward Hudson." ], "opinions": [ { "text": "Mr. Justice Windes\ndelivered the opinion of the court.\nThe only question which we deem necessary to consider is the validity of the chattel mortgage under which appellee claims the right to recover.\nThere is no dispute but that Escanbrook, one of the partners in the firm of Jameson & Escanbrook, failed to sign or acknowledge the mortgage. It was signed in the name of Escanbrook, and also in the name of Jameson & Escanbrook by Malcom Jameson. Escanbrook did not appear before the justice to acknowledge the mortgage, and did not acknowledge it. The acknowledgment was by Jameson alone, although the justice of the peace certified that Escanbrook acknowledged the mortgage. He testified that he told Jame-son to sign his (Escanbrook\u2019s) name to the paper, but says nothing as to directing Jameson to acknowledge the mortgage in his behalf. The certificate of acknowledgment was therefore false in stating that Escanbrook acknowledged the mortgage, and was invalid as to the appellants who were creditors of Jameson & Escanbrook. The statute (2 Starr & Curtis, Ch. 95, Sec. 2) provides, among other things, that the mortgage, before it shall be valid as against the rights and interests of any third person, shall be acknowledged before a justice of the peace of the town or precinct where the mortgagor resides, and recorded in the county where the mortgagor resides, or, in case he is a non-resident of this State, then in the county where the property is situated and kept.\nIn Frank v. Miner, 50 Ill. 444-7, it was held that if either of the requirements of the statute is wanting, while the mortgage is binding between the parties, it is void as to creditors and purchasers. The mortgage was held void because it was not acknowledged before a justice of the precinct where the mortgagor resided.\nTo the same effect is Rehkopf v. Miller, 59 Ill. App. 662.\nIn Long v. Cockern, 128 Ill. 29-36, it was held that as to creditors with actual notice, a chattel mortgage, acknowledged before a notary public, was void.\nIn Burchard v. Kohn, 157 Ill. 583, it was held that a chattel mortgage which was not recorded was void as to creditors, though good as between the parties.\nIn First Nat. Bank v. Baker, 62 Ill. App. 158, a chattel mortgage purporting to be made by the Corey Car & Manfg. Co., and acknowledged by \u201cJames B. Bielly, Secy., and Francis W. Corey, Prest., the mortgagors therein named,\u201d was held to be void as against a creditor because the acknowledgment did not purport to be that of the mortgagor. The court said, \u201cWe are not to consider what one who reads this certificate might conclude, but what is certified.\u201d\nIn Walton v. Gernand, 65 Ill. App. 19, a chattel mortgage of household furniture, although signed by a husband and wife, and purporting to be acknowledged by both, was held to be void, it being shown that the wife did not in fact acknowledge the mortgage\u2014that the officer\u2019s certificate was false.\nIn McDonald v. Stewart, 83 Ill. 538, where the certificate of acknowledgment to a chattel mortgage regular in form was shown to be false, the mortgage was held to be void, and in deciding the case the court said : \u201cWhether notice was conveyed to parties as well by the instrument, as thus executed, as it would have been had the law been faithfully observed, is not for us to inquire. As between the parties, it was valid without any acknowledgment; but without the acknowledgment it has no effect upon the rights of third parties acting in good faith. In such case actual notice of the mortgage does not prevent the creditor from asserting his right to subject the property to the payment of his debt. (Citing cases.) There is no want of good faith on the part of a creditor in levying upon his debtor\u2019s property included in a chattel mortgage which the law declares void as to him.\u201d See also Aultman v. Guy, 41 Ohio St. 598, and cases cited; and Westlake v. Westlake, 47 Ohio St. 315, in which it was held that the word \u201c mortgagor,\u201d in a statute similar to the Illinois statute, means each mortgagor.\nWe are therefore of the opinion that the chattel mortgage which is the basis of appellee\u2019s claim, not having in fact been acknowledged by Escanbrock, one of the mortgagors, was void as to appellants because of the falsity of the certificate of the acknowledgment, and the judgment is reversed.", "type": "majority", "author": "Mr. Justice Windes" } ], "attorneys": [ "W. J. Lavery, attorney for appellants.", "George P. Merrick, attorney for appellee." ], "corrections": "", "head_matter": "Joseph Fahndrich, Charles J. Fahndrich and Fred P. Fahndrich, copartners, trading as Fahndrich & Sons, v. Edward Hudson.\n1. Chattel Mortgages\u2014Must be Acknowledged.\u2014To be valid as against the rights and interests of third persons a chattel mortgage must be acknowledged before a justice of the peace of the town or precinct where the mortgagor resides, and recorded in the county; or, in case he is a non-resident of this State, then in the county where the property is situated and kept.\n2. Same\u2014Certificate of Acknowledgment False\u2014Mortgage Void.\u2014 Where the certificate of acknowledgment of a chattel mortgage, regular in form, is shown to be false, the mortgage is void.\nReplevin.\u2014Count in trover! Trial in the Circuit Court of Cook County; the Hon. Charles G. Neely, Judge, presiding. Verdict and \u2022 judgment for plaintiff, $600. Appeal by defendants.\nHeard in this court at the March term, 1898.\nReversed.\nOpinion filed May 26, 1898.\nRehearing denied June 9, 1898.\nStatement op Facts.\nIn the year 1894 the firm of Jameson & Escanbrook were engaged in business as butter merchants in Chicago, and on Hay 12th in that year, being indebted for a loan to the firm by appellee of $700, Malcom Jameson, one of the partners, in his own name and that of the other partner, P. J. Escanbrock, and also in the firm name by himself, executed a note for the amount of the loan, payable on or before one year from date to appellee, bearing interest at seven per cent. To secure this note he also, in the same manner, executed a chattel mortgage in the usual form of chattel mortgages, by which certain personal property of the firm, consisting of horses and wagons, was sold and conveyed to appellee, the mortgage to be void if the note and interest thereon should be paid.\nThe mortgage purports to have been acknowledged May 12, 1894, before George L. Ford, a justice of the peace, by \u201c Malcom Jameson and P. J. Escanbrock, firm of J ameson & Escanbrock,\u201d and was entered on the justice\u2019s mortgage record the same day, and was recorded in the recorder\u2019s office of Cook county, Illinois, August 24, 1894. May 14, 1894, the note and mortgage were delivered to appellee. Early in September, 1894, appellant commenced a suit by attachment before a justice of the peace against Jameson & Escanbrock and D. J. Jameson, and caused the writ to be levied by a constable on part of the horses and wagons described in the mortgage September 20, 1894. ISTo service was had on Escanbrock. and judgment was rendered against the other two defendants, the Jamesons, October 10, 1894, for $86.24 and costs.\nOctober 10,1894, appellee brought replevin against appellants in the Circuit Court of Cook County for the horses and wagons attached at the suit of appellants, the writ being returned not executed as to the property. The declaration had the usual counts in replevin and a count in trover. The pleas were non oejoib, non debinet, property in the Jamesons and Escanbrock, property in appellants, and not guilty as to the trover count. Issues were joined and a trial before the court and a jury resulted in verdict of guilty, right to possession in plaintiff, and assessing damages at $600. Defendants\u2019 motion for new trial was overruled, and judgment entered against defendants for $600 damages, from which they appealed.\nW. J. Lavery, attorney for appellants.\nGeorge P. Merrick, attorney for appellee." }, "file_name": "0641-01", "first_page_order": 639, "last_page_order": 643 }