Reese v. Taylor , 25 Fla. 283 ( 1889 )

Maxwell, J.:

Our statute in reference to chattel mortgages provides that no mortgage of personal property shall be effectual or valid to any purpose whatever, unless such mortgage shall be recorded in the office of records for the county in which the mortgaged property shall be at the time of the execution of the mortgage, unless the mortgaged ptoperty be delivered at the time of execution of the mortgage, or within twenty days thereafter, to the mortgagee,-and shall continue to remain truly and bona fide in his possession,” McClellan’s Dig., section 1, p. 213. This in the original act of 1828 follows section 4 of that act, which is still in force, and provides that “ no conveyance, transfer or mortgage of real property, or of any interest therein, shall be good or effectual in law or in equity against creditors or subsequent purchasers for a valuable consideration, and without notice, unless the same shall be recorded in the office assigned by law for that purpose.” McC’s Dig., section 6, p. 215. The marked distinction which appears in the same act between a mortgage of personal property and a mortgage of real property, as to the effect of failure to record the mortgage, shows an unmistakable purpose in the Legislature to put the mortgages on a different footing. Yetit is difficult when the usual purpose of a record is considered, that is, the giving of notice to others than those engaged in the transaction, to conceive why it is declared that no mortgage of personalty shall be effectual or valid to any purpose whatever, if there is not a delivery of the property, unless the mortgage be recorded. As between the parties to the mortgage, no notice is necessary. The object being to guard against fraud, record notice must be intended to assist that object, and obviously that is not needed to protect the parties themselves. Still, there is no escape from the plain words of the statute — not “effectual or valid to any purpose whateverand even as between the parties to the mortgage, where the property is not delivered, it can have no efficacy if not recorded — thus reaching beyond the scope of the usual statutes for the protection of creditors and subsequent purchasers, and including the mortgagor. Weed vs. Stanley, 12 Fla., 166.

In this case there was a foreclosure of a mortgage on personalty, the property not having been delivered, and no valid record of the mortgage made till after the debt it was given to secure became due. There had been a previous record, but without any proof or acknowledgment of the execution of the mortgage, and it was, therefore, without validity as a record. The simple question, decisive of the case on its merits, is, whether the mortgage became effectual when recorded after the mortgage debt accrued due. We think it did. There is nothing in the statute, nor in any law of the State, prescribing or limiting the time within which the record should be made. The mortgagee had an inchoate right, dependent upon his having the record made, and it could not affect any right of the mortgagor whether made before or after the debt was due. As between them the date of the record was of no moment, if made before the institution of the suit tor foreclosure, as was done in this case. The fact that to make the mortgage valid and effectual there should be a recording, if the property is not delivered within twenty days after its execution, cannot be regarded as fixing that as a period within which to have the record made. Just as a mortgage given' to secure a note past due would be valid, so this one perfected by a right still existing in the mortgagee should have the same efficacy. There might be cases in which it would appear that there had been unreasonable delay in having the record made, or cases in which the death of the mortgagor prior to the record, and after the lapse of ample time for it during his life, would become of consequence; and in these cases, denoting laches, a more rigid application of the statute might be proper. But since we find an effort, though ineffectual, to have a record of the mortgage in reasonable time, which shows the absence of any purpose of concealment, we think there is no occasion for such application in this case. So, there might be cases where it would appear that the transaction was for a fraudulent purpose, but nothing of the kind appears in this case; but if it did, a court would be loth to permit the mortgagor to shelter himself behind his own fraud, if the debt itself is a bona fide one, the contrary of which is not pretended here.

It is onr opinion the decree should be affirmed, and it is so ordered.