In re Assignment of Dehner

5 Ohio N.P. 247

• Court: Hamilton County Court of Insolvency
• Decided: May 15, 1887
• Status: Published

Opinion

McNEILL, J.:

Michael H. Dehner, just prior to making an assignment, gave several chattel mortgages to creditors, among which was one to Margaret Wiecher. These mortgages were all given at the same time, and evidence was submitted to the effect that Dehner at the time of the execution of the mortgages stated that he intended to treat all the mortgagees alike. This statement, I think the evidence shows, Mrs. Wiecher did not hear. As soon as she received her mortgage she had it sent to the recorder’s office and filed. The other mortgages were all filed together about thirty minutes later. It is now contended that as Mrs.Wiecher had knowledge of the other mortgages at the time she received her mortgage, she should not be allowed a preference over them on distribution.

Section 4150, of our Revised Statutes, provides that a mortgage of goods and chattels, which is not accompanied by an immediate delivery, and followed by an actual and continued change of possession of the things mortgaged, shall be absolutely void as against the creditors of the mortgagor, subsequent purchasers, and mortgagees in good faith, unless the mortgage or a true copy thereof be forthwith deposited as directed in the next section (sec. 4151). Section 4151 provides, that such mortgage shall be deposited with the township clerk of the township in which the mortgagor re sides, * * * or, if the mortgagor resides * * * in the township in which the office of the county recorder is kept, then the mortgage .is to be deposited in that office, and the officer with whom it is filed is required to endorse thereon the exact time of its receipt. In this case all the mortgages wore properly filed in the office of the county recorder.

As shown above, a chattel mortgage is not valid as against creditors until it is filed as required by the statute. The proper filing of it perfects it as a security.

In the case of Cass v. Rothman, 42 Ohio St., 380, Judge Owen in delivering the opinion ) f the court says: “The fact that the officer with whom the mortgage is to be deposited is required to endorse upon it the exact time of its receipt, lends force to the view that the employment of the word ‘forthwith’ in the statute was not intended to leave the question of priority between creditors open to controversy upon the facts of each case.”

Mrs. Wiecher perfected her sdouiity before the other mortgagees perfected theirs, and there being no agreement on her part as to when she would file her mortgage, and no bad faith on her part toward the other creditors, she is entitled to the benefit of her greater diligence. An order will therefore be made giving priority to the mortgage of Mrs. Wiecher.

T. L. Magruder, attorney for Lydia Weymouth and A. W. Osborne, executor. Hamilton & Hamilton, attorneys for heirs of William Weymouth et al. Little & Spencer, attorneys for devisees of Martha Jane McAfee et al.