Cope v. Minnesota Type Foundry Co. , 21 Mont. 18 ( 1898 )

Hunt, J.

— The question for decision is : Was the affidavit for renewal, which respondent relies upon, sufficient to renew the mortgage ? The affidavit is as follows :

‘ ‘George F. Cope, cashier, being duly sworn, deposes and says : (1) That he is the mortgagee named in a certain chattel mortgage made and executed by Lucien Eaves, the mortgagor therein named; (2) that said mortgage bears date upon the 22nd day of June, 1895, and that the same was filed of record in the office of the County Recorder of the County of Lewis and Clarke, and State of Montana, upon the 22nd day of June, 1895; (3) that the amount of the debt or obligation secured by the said chattel 'mortgage is the sum of one thousand and sixty-six dollars, and that there is now justly owing upon said debt or obligation the sum of one thousand and sixty-six dollars; (4) that the time for the payment of said last mentioned sum is hereby extended to the 22nd day of June, A. D. 1896; (5) that said debt or obligation was neither made, nor is the same renewed or extended, to hinder, delay, or defraud the creditors or subsequent mortgagees of the mortgagor. George F. Cope, Cashier.

1 ‘Subscribed and sworn to before me, this 26th day of June,. 1895. Frank D. Miracle, Notary Public in and for the County of Lewis and Clarke, State of Montana.”

The statute under which renewals of chattel mortgages were made when the mortgage involved herein was given and renewed was as follows :

“Every mortgage of goods, chattels or personal property made, acknowledged and filed as provided by the laws of this state may be renewed at or before the maturity of the debt or obligation secured thereby in case such debt or obligation, or any part thereof, be unpaid or unfulfilled, by filing an affidavit showing the date of such mortgage, the name of the mortgagor .and mortgagee, the date of filing the same, the amount of the debt or obligation secured thereby, and the amount of the debt justly owing at the time of filing such affidavit or the conditions of the obligations unfulfilled, the time to which the same is extended, which time shall not exceed one year, and that such debt or obligation was neither made nor renewed or extended to hinder, delay or defraud the creditors or subsequent mortgagees of the mortgagor, which affidavit shall be subscribed and sworn to by the mortgagee before an officer authorized to administer oaths, and filed in the office where such mortgage therein described is filed, and thereupon the clerk and recorder of deeds of such county shall attach such affidavit to the mortgage therein described and note the date of filing thereof opposite the entry of the mortgage therein described in the book provided by law for the entry of chattel mortgages and thereby such mortgage shall be renewed, continue and be valid and of full force and effect upon the goods, chattels or personal property described therein for the time stated in such affidavit, not to exceed one year.”

Does the affidavit, quoted above, conform to the statute ? We think it does, and that when said affidavit was filed in the office where the original mortgage therein described was filed, and when the clerk and recorder of deeds of the county in whose office the mortgage was filed attached the affidavit to the mortgage therein described, and noted the date of filing as provided by the statute, thereby the mortgage was renewed, was continued and became a valid lien, of full force and effect upon the chattels described in the mortgage, for the time specified in the affidavit.

The statute declares that ‘ ‘every mortgage * * * made, acknowledged and filed as provided by the laws of this state may be renewed * * * by filing an affidavit, 5 ’ etc. Thus,the right to have the mortgage renewed is complete, provided the necessary affidavit to make effectual the renewal is made and filed. The affidavit contemplated must show six essential facts: (1) The date of the mortgage; (2) the name of the mortgagor and mortgagee; (3) the date of filing the (same) mortgage; (4) the amount of the debt or obligation secured (thereby) by the mortgage; (5) the amount of the debt justly owing at the time of filing of the affidavit, or the conditions of the obligation unfulfilled; (6) the time to which the (same) debt or obligation unfulfilled is extended; and (7) that such debt or obligation unfulfilled was neither made nor renewed nor extended to hinder, delay or defraud creditors or subsequent mortgagees of the mortgagor. It is by carrying out this prescribed method of showing these facts, and by filing an affidavit containing them, that the mortgage is renewed.

Counsel 'for appellant would have us read the sixth essential of the affidavit as though it required the affidavit to show ‘ ‘the time to which the mortgage is extended, ’ ’ and not ‘ ‘the time to which the debt or unfulfilled obligation is extended. ’ ’ But if it is kept in mind that the renewal is by means of filing the affidavit referred to, and not by indorsements or writings upon the original mortgage, we are held to a consideration of just what the contents of the affidavit alone must be, and to an interpretation of the words and sense of the statute which provide for the showing to be made therein. The mortgage is a separate instrument, in no way affected until the affidavit :has been filed and the proper entries have been made. By section 1512 it becomes the subject of renewal, and although necessarily to be referred to in the affidavit for renewal, still its renewal is accomplished by means of the affidavit, and by it alone. Examining the fifth subdivision of the necessary contents of the affidavit, we find that the amount of the debt justly owing, or the condition of the' obligation unfulfilled, must be shown. By the condition of the obligation unfulfilled is meant the condition of the outside obligation to secure which the mortgage was originally given. The mortgagor, for ex ample, may have obligated himself to indemnify the mortgagee for signing a note as surety in a bank, or for signing and executing a penal bond or an attachment bond, in which cases the affidavit must show the condition of the obligation of the mortgagor to the mortgagee yet unfulfilled. If it be a debt owing, the amount need only be stated. Under this interpretation of the fifth statement of the affidavit, the adjective ‘ ‘same, ’ ’ in the sixth statement, refers to the amount of the debt or obligation just befoie mentioned in the fifth statement as necessary to be shown in the affidavit for renewal. Then comes the seventh essential showing of the affidavit, where the reference of the statute to ‘ ‘such’ ’ debt or obligation again relates to the certain specified debt or obligation unfulfilled theretofore mentioned, and to secure which the mortgage was given.

We are confirmed in this construction of the statute by examining Section 1543 of the Compiled Statutes. It is therein provided that the filing of the affidavit required by Section 1542 “shall not be construed to extend the time of maturity of any debt or the execution of any obligation secured by such mortgage, ’ ’ but the same may be enforced, and such mortgage foreclosed, unless agreement be made between the mortgagee and mortgagor extending the time of payment of such debt or fulfillment of such obligation to the time stated in such affidavit. The words ‘ ‘obligation secured by such mortgage’ ’ are evidently any debt or obligation secured by such a mortgage as may be renewed under the provisions of Section 1542. Section 1543 pertains especially to the debt or obligation, as contradistinguished from the mortgage itself; while Section 1542 relates especially to the mortgage. Again, the latter section provides for the renewal of the mortgage; but the former expressly says that there shall be no extension of the time of maturity of the debt or obligation secured by merely filing the affidavit referred to, unless there is an agreement between mortgagee and mortgagor extending the time of payment of the debt or fulfillment of the obligation to the time stated in the affidavit of renewal.

It follows from this reasoning that Section 1542 is ineffectual for the purpose of extending the time of the maturity of the debt or obligation without Section 1543, for no extension of a mortgage only would carry with it the extension of the time of maturity of a debt secured by such mortgage. A mortgagee may, under Section 1512, keep his mortgage lien alive for the length of time stated in his affidavit of renewal; and thus third persons are put on notice of his extended lien and the amount due him, but the mortgagor may not derive the benefit of having the maturity of his debt extended through the mortgagee’s act of renewal, unless he can agree with the mortgagee to extend the time of payment of such debt. If he makes such an agreement, the statute is for his advantage, and he secures an extension without the cost and annoyance of a new mortgage. If he cannot make it, although the mortgagee may extend his mortgage, he can foreclose at any time within the period of extension.

The question at issue being purely one of statutory construction, our judgment is that respondent’s affidavit is in accord with Section 1542; and, by filing the same, he thereby renewed the mortgage described in his complaint.

The judgment is affirmed.

Affirmed.

Pemberton, C. J., and Pigott, J., concur.