Stevenson v. Colopy
Stevenson v. Colopy
Opinion of the Court
When there is not an immediate delivery of goods to the mortgagee at the time the mortgage is executed, followed by an actual and continued change of possession of the things mortgaged, the mortgage will be absolutely
It is made the duty of the officer receiving such instrument, to indorse thereon the time of receiving it and its consecutive number; to enter in a book, provided by the township trustees or county recorder, the names of all the parties to the instrument alphabetically arranged, with the number of the instrument, its date, the day of filing it, and the amount secured thereby; and to deposit the instrument in his office, to be there kept for the inspection of all persons interested. Revised Statutes, § 4152.
The statute, however, provides, that if the party depositing the instrument may desire to have it recorded, the officer shall record the same, at the expense of the person making the request, in a book, provided by the township trustees or county recorder; and shall enter upon the margin of such record when the instrument is re-filed, any affidavit, credit, or statement, placed thereon after it was recorded. Revised Statutes, § 4153.
It is contended that notwithstanding the recording of the chattel mortgages in controversy, they ceased to be valid liens on the mortgaged property, as against the executions levied upon valid and subsisting judgments, for the reason that from the 9th day of September, 1886, until the 6th day of January, 1887, neither the original mortgages nor true copies thereof, were on deposit, having been on request of the mortgagees Joseph H. Colopy and Levi F. Colopy, delivered to them by the township clerk, and by them retained until the day after the 1’evy of the executions, when they were again deposited with the township clerk.
It is now provided by the statutes of many of the states, that mortgages of personal property, like those of real estate, shall be publicly recorded, in order to give them validity against any but the parties themselves, unless the mortgagee
A compliance with the statute requires, that the instrument when deposited shall be kept in the offiee for the inspection of all persons who may be interested. The instrument referred to is the original mortgage or a true copy thereof. If the original is not placed on file, a copy must be substituted. But such copy, within the meaning of the statute, may, we think, be either in the form of the original mortgage and so filed, or it may be a transcript which is spread out in extenso in the book designed for the recording of chattel mortgages. To protect creditors of the mortgagor, subsequent purchasers, and mortgagees in good faith, from the imposition which might be practised upon them by persons appearing to be the absolute owners of goods which are really subject to encumbrance, it is evident that as full, clear and explicit notice of such encumbrance may be given by means of a public record, as by depositing the instrument, or a copy of it, with the township clerk or county recorder, as directed by statute.
By the act of April 30, 1877, (74 Ohio Laws 149,) it was made the duty of the township clerk to record any chattel mortgage deposited with him, at the expense of the person depositing it. Chattel mortgages were thereby placed, as to recording, upon a level with mortgages of real estate: It evidently was not the intent of the law, after a copy of the original mortgage was thus required to be perpetuated on the record, that the original might not be withdrawn from the clerk’s office otherwise than temporarily, without destroying its force as a prior lien. The act of April 30 was repealed
It is said in behalf of the plaintiff in error, that the only object of the statute in authorizing chattel mortgages to be recorded, is to enable a duly certified copy of the record of the instrument to be admitted in evidence, as provided in section 4156 of the Revised Statutes. That the use of a certified copy of the record in evidence might be an important incident to, and benefit from the recording of the mortgage, is manifest; but such use can no more be deemed the primary object of recording a chattel mortgage, than the admission in evidence of a duly certified copy of the record can be regarded as the main object of recording mortgages of real estate.
Our conclusion, therefore, is, that by recording the original mortgages the defendants in error substantially complied with the statutory provision for depositing a true copy of the instruments with the township clerk; and that by withdrawing the originals from the files, the mortgagees did not lose their priority of lien as against the levies made by the sheriff.
Judgment affirmed.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.