Story v. Cordell , 13 Mont. 204 ( 1893 )

De Witt, J.

We are of opinion that the contentions in this case are determinable under the provisions of our law in reference to personal property securities. (General Laws, Comp. Stats., div. 5, c. 92.) That chapter provides, among other things, as follows: “ The provisions of the foregoing sections of this chapter shall extend to all such bills of sale, deeds of trust, and other conveyances of goods, chattels, or personal property as shall have the effect of a mortgage or lien upon such property.” (Comp. Stats., § 1549.) It is perfectly clear that the bill of sale in this case falls within the purview of this section. The transaction between Cordell, the debtor, and Story & Co., his creditors, in which the bill of sale was given, was intended to “have the effect of a mortgage or lien upon” the whisky. Therefore, this transaction being subject to the provisions of chapter 92, section 1538, is applicable, aud that section is as follows: “No mortgage of goods, chattels, or personal property shall be valid, as against the rights and interests of any other person than the parties thereto, unless the possession of such goods, chattels, or personal property be delivered to and retained by the mortgagee, or the mortgage provide that the property may remain in the possession of the mortgagor, and be accompanied by an affidavit of all the parties thereto, or, in case any party is absent, an affidavit of those present, and of the agent or attorney of such absent party, that the same is made in good faith to secure the amount named therein, and without any design toJhinder or delay the creditors of the mortgagor, and be acknowledged and filed as hereinafter pro-, vided.”

Applying the law to the facts, we observe that the. possession of the personal property was not delivered to and retained by Story & Co., who were in the relation of mortgagees, as described in section 1538. Nor again, was the instrument — bill of sale — which by section 1549 is to be treated as a mortgage, accompanied by the affidavit mentioned in sec-1538, nor was it acknowleged as therein provided Applying the further provisions of section 1538, we observe that the transaction was void as against the rights and interests of any other person than the parties thereto. The rights of persons (which rights Sutton represents) other than the parties to that transaction having intervened, that transaction is void as to those rights. The judgment is therefore reversed.

Reversed.

Pemberton, C. J., and Harwood, J., concur.