Harvey v. Dunn

Illinois Supreme Court
Harvey v. Dunn, 89 Ill. 585 (Ill. 1878)
Scholfield

Harvey v. Dunn

Opinion of the Court

Mr. Justice Scholfield

delivered the opinion of the Court:

The only objection, as shown by the record, taken to the chattel mortgage, upon the trial below, was the general one, that “it was not properly acknowledged and recorded according to the statute.” In what respect it lacked the statutory requirements, in respect of acknowledgment and recording, was not pointed out.

So far as we have been able to discover, there is no substantial objection to the form or mode of acknowledgment, and the proof of the recording is entirely satisfactory. The omission, in the certificate of acknowledgment, of the words directed by the statute, “ and entered by me,”- after the words “acknowledged before me,” we have held, in Schroder v. Keller, 84 Ill. 46, did not vitiate and render invalid the acknowledgment,—where, as here, the justice taking the acknowledgment did, in fact, make the entry upon his docket, as required by the statute.

But the point relied upon by appellee’s counsel, to sustain the finding and judgment below, is, that it was not proven on the trial that the justice taking the acknowledgment was of the town of Sheldon, where the mortgagor resided. As above observed, it does not appear that this specific objection was urged upon the trial. The certificate of acknowledgment does not show in what town of Iroquois county the justice taking the acknowledgment holds office. It was, therefore, clearly an objection which, if it had been specifically urged, might have been removed by further proof, and it can not be heard here. Harmon et al. v. Thornton, 2 Scam. 353; Funk et al. v. Staats, 24 Ill. 632; Wright et al. v. Smith, 82 id. 527.

The latter case is a stronger case for the party claiming under the mortgage than the present. There, secondary evidence was given of a mortgage, (the original having been destroyed by fire,) which did not include* proof that the mortgage was acknowledged in the proper district. The court, on motion, excluded the evidence—whether on that or other ground did not appear. A majority of the court, not including the writer of this opinion, held the exclusion of the evidence error, and that the party claiming under the mortgage was entitled to have had the specific objection that the evidence did not show that the acknowledgment was taken in the proper district, pointed out to him, so that he might have removed it by further evidence.

In our opinion, the finding and judgment below resulted from a misapprehension of the law applicable to the case.

The judgment is reversed and the cause remanded.

Judgment reversed.

Reference

Full Case Name
Wesley B. Harvey v. James Dunn
Cited By
5 cases
Status
Published
Syllabus
1. Chattel mortgage—certificate of acknowledgment. A certificate of the acknowledgment of a chattel mortgage, that the mortgage was duly acknowleged before the justice by the above named C D, the mortgagor, giving the date, but omitting the words, “and entered by me,” is not open to any substantial objection. It is sufficient if, in fact, the justice has made the entry on his docket as required by the statute. 2. Practice—when specific objection should be made. Where the certificate of the acknowledgment of a chattel mortgage does not show in what town the justice taking the same holds his office, and there is no proof that the mortgagor resides in the same town, unless a specific objection is made in the court below for the want of such proof, when it is sought to introduce the mortgage in evidence, so as to afford an opportunity of removing the same by further evidence, it can not be urged in this court.