Herrick v. First National Bank

286 F. 305, 1923 U.S. App. LEXIS 2703

• Court: Court of Appeals for the Ninth Circuit
• Decided: January 8, 1923
• Docket: No. 3830
• Status: Published

Opinions

HUNT, Circuit Judge.

The bankrupt gave a chattel mortgage to a bank in Washington to secure the purchase price of certain automobiles. The mortgage was acknowledged before a notary public and filed with the proper recording officer. The instrument bore the usual form of affidavit of good faith, which was signed by the mortgagor, but the jurat to the affidavit was not signed by any one, although the notary public before whom the instrument was acknowledged affixed his official seal opposite the place where his signature should have been. The validity of the mortgage was questioned, and from a ruling sustaining the mortgage the trustee in bankruptcy took an appeal.

Section’ 3660, Remington & Ballinger’s Code of Washington, as amended by Faws 1915, p. 277, provides that a mortgage of personal property is void as against creditors and subsequent purchasers, “unless it is accompanied by the affidavit of the mortgagor that it is mad© in good faith and without any design to hinder, delay, or defraud creditors, and unless it is acknowledged and filed within 10 days from the time of the execution thereof in the office of the county auditor of the county in which the mortgaged property is situated as provided by law.” Section 8299 provides that it is not necessary for a notary public, in certifying an oath to be used in any of the courts of Washington, to append an impression of his official seal, but in all other cases, when a notary shall sign any instrument officially, he shall, in addition to his name and the words “notary public,” and his place of residence affix his official seal.

We agree with the learned District Judge that the instrument should be complete in itself, and that there could be no inquiry into extrinsic matters to determine its validity. Jennings v. Schwartz, 82 Wash. 209, 144 Pac. 39. But our conclusion is that because of the lack of the necessary affidavit of good faith the mortgage cannot be held valid against the trustee. The statute being specific in requiring an affidavit of good faith, its provisions, of course, must be complied with, and in our opinion a mortgage that fails to show that an oath was administered is lacking in an essential and important requisite, which cannot be dispensed with. A creditor examining the record would conclude that no oath had been administered to the parties, and could well say that, as the mortgage had no affidavit as required, it was void as against him. In Reynolds v. Fitzpatrick, 23 Mont. 52, 57 Pac. 452, the purported affidavit was signed by the parties to the chattel mortgage, but there appeared no signature of any officer to the jurat. The court held that under the statute (section 3861, Civ. Code Mont. 1907), which is very like section 3660, supra, the mortgage was wholly void as against creditors of the mortgagors. See also, 2 C. J. 360; Hill v. Gilman, 39 N. H. 88; Milburn Mfg. Co. v. Johnson, 9 Mont. 537, 24 Pac. 17; Garrard v. Hitsman, 16 N. J. Law, 124; Westerfield v. Bried, 26 N. J. Eq. 357.

It is said that, inasmuch as the mortgage appears to have been properly acknowledged before a notary whose signature appears, the execution of the instrument as a whole is sufficiently clear to enable the court to say that the statute has been substantially complied with. But the statute, by express provision, is that the mortgage shall, be void as to creditors unless it is accompanied by the affidavit of good faith, and unless it is acknowledged and filed as specified. The two things are essential, and we cannot hold that either can be omitted. In Woods v. Young Lumber Co., 107 Wash. 432, 181 Pac. 865, cited by appellee, the jurat was signed by the notary before whom the acknowledgment was taken; but his official seal was not affixed, although it was affixed to the certificate of acknowledgment. The pivotal point was whether or not there was such an absence of an impression of the notary’s official seal from his jurat certifying to the subscribing and swearing to the affidavit of good faith, as to render the certificate of no effect. The court took the view that the one impression of the notary’s seal near his signature to the certificate of acknowledgment was sufficient to render the certificate to the jurat effective under the facts of the case. The distinction between that case and this is, however, that there the notary signed his name to the jurat as well as to the acknowledgment, and thus there appeared to be a completed affidavit, whereas, in the case before us there was no attempt, apparently, to swear the parties or to authenticate the document by one certificate. Holmes v. Crooks, 56 Neb. 466, 76 N. W. 1073.

The judgment of the District Court is' reversed, and the matter is remanded, with directions to enter an order declaring the mortgage void as against the trustee in bankruptcy.

Reversed.