Sage v. Browning ( 1869 )

Mr. Justice Lawrence

delivered the opinion of the Court:

This case turns upon the question, whether the mortgagee in a chattel mortgage not acknowledged before the proper officer, can hold the property against a junior mortgagee who took with actual notice of the elder mortgage. In the cases of Forrest v. Tinkham,, 29 Ill. 141; Porter v. Dement, 35 ib. 478, and Frank v. Miner, 50 ib. 444, this court has held the elder mortgage to be void in such cases, notwithstanding actual notice.

Counsel for the defendant in error cite Van Pelt v. Knight, 19 Ill. 535, and Hathorn v. Lewis, 22 ib. 395, as holding a different rule. The first case hardly touches this question, and the second was decided on the ground that the purchaser in that case, in buying from the mortgagor, was understood to be buying only his equity of redemption, and did not pay the full value of the property, but allowed for the mortgage. The court evidently considered him under an implied promise to pay the mortgage. This case can not, therefore, be regarded as in substantial conflict with the later decisions.

Counsel refer to the rule in regard to the effect of actual notice of unrecorded deeds of realty. A comparison, however, of the 1st section of the act of chattel mortgages with the 23d section of the act of conveyances, will show there is no analogy. In the one act, a mortgage not legally executed and acknowledged, is declared void, as to all third persons; in the other, an unrecorded deed is declared void, as to creditors and subsequent purchasers without notice.

The instructions of the circuit court were in conflict with the rule established by this court, and the judgment must be reversed.

Judgment reversed.