Untitled Texas Attorney General Opinion ( 1947 )

R-446
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OFPICE OF
THE ATTORNEY GENERAL
AUSTIIV.TEXAS
June 10, 1947
Hon. Donald Allums Opinion m. v-239 i
Chnty Auditor
Hardin County Re: Registration by the,
Kountee, Texas county clerk~of con-
ditional sales con-
tracts.
Dear Sir: ':
Your letter requesting an opinion from this
Department on the above subject matter is as follows:
"Certain business firms operating
in Hardin County and other counties of
thLs State, are requesting that condi-
tionsL'sales contracts be registered as
chattelmortgag~es without being properly
authenticated by acknowledgment or wit-
nesses, as required by law. The'county
clerk of Iiardin County is of the opinion
that he has no authority to register such
instruments unless same are acknowledged
before some officer authorized to take
acknowledgments and/or witnessed as pro-
vided by-law:
~ ."will you please' furnish opinions.from
~that Department as to the construction of
this law. Articles governing recording and. '
registering instruments are as follows, to-
wit: Articles 5489, 5492; 6619, 6609, 6626
and 6627. Articles 5489 and 5492 seem to be
the law under xhich said firms are trying to
operate under.
_.
Article 5489 is as follows:
"All reservation of the title to or
property in chattels, as security for the
purchase money thereof, shall be held to be
chattel mortgages, and shell, when posses-
sion is delivered to the vendee, be void as
to creditors and bona fide purchasers, un-
3ess such reservations be in writing and
,
Eon. Donald Allums - Page 2
registered as required of chattel mort-
gages. lipthing in this law shall be.
construed to contravene the landlord
and tenant law. ’
.L
It was held in the case of Mente v. First
National Bank of Amarillo, 206 8.W. 693, that where a
sale is conditional, In that the title is to paas,
not upon delivery of the property but upon subsequent
payment, in orders to affect,subsequent purchasers or
creditors, the instrument must be filed as a chattel
mortgage. It was further held In the case of Willis
Overland Company of California Q. Chapman, 206 S.W.
978, that a conditional sale of an automobile in Cali-
fornia vhere it Is not necessary to register the instru-
ment, upon removal.of the automobile to Texas by the
purchaser, it will be. considered a chattel mortgage and
unless registered in Texas will be vcid as against bonp
fide purchaser. It will be noted that e.r:cor&s; z.. L.-I
foregoing 08888, conditional sales in Texas are consiuer-
ed chattel mortgages and as such must be filed in the
county clerk’s office in order to affect subsequent pur-
chasers ‘or creditors.
We quote the following pertinent statutory
provisions:
“Art. 5490. Every chattel mortgage,
deed of trust, or other instrument of writ-
ing, intended to operate as a mortgage, or
lien upon personal property, and every trans-
fer thereof which shall not be accompanied
by an immediate delivery and be followed~by
an actual andcontinued change of possession
of the property mortgaged, pledged, or affect-
ed by such instrument, shall be absolutely
Void as against the creditors of the mortga-
gor or person making same, aa against subse-
quent purchasers and mortgagees or lien
holders in good faith, unless such instru-
ment, or a true copy thereor, shall be forth-
with deposited vith and filed in the office
of the county clerk of the county where the
property shall then.be situated, or If the
mortgagor or person making the same be a
resident of this State, then, of the county
of wh$h he shall at that time be a resident;
. . .
Hon. Donald Allums - Page 3
"Art. 5492. Upon the receipt of such
instrument, the clerk shall lndorse thereon
the day and hour when the same was deposited
in his office for the inspection of all par-
ties interested until satisfaction thereof
shall be entered, as provided for in this
chapter. If a copy be presented to the clerk
for filing, instead of the original instru-
ment, he shall carefully compare such copy
vith the original, and the same shall not be
filed unless it is a true CODY thereof. and
unless the original has been-witnessed-bgwo
subscribing witnesses or acknowledged or
proven for record and certified as required
in case ~of other instruments for the purpose
of being recorded." (Emphasis ours)
"Art. 6609. The proof of any instrument
of writing for the purpose of.being recorded
shall be by one or more of the subscribing
witnesses personally appearing before some
officer authorized to take such proof, and
stating on oath that he or they saw the
grantor or person who executed such instru-
ment of writing subscribe the same or that
the grantor .or person who executed such in-
strument of writing acknowledged in his or
their presence that he had executed the same
for the purposes and consideration therein
stated; and that he or they had signed the
same as witnesses at the request of the grantor
or person who executed such instrument; and the
officer taking such proof shall make a certlfi-
cate thereof, sign and seal the same with his
official seal."
"Art. 6626: The folloving instruments of
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writing which shall have been acknowledued or
proved according to law, are authorized to be
recorded, vie: all deeds, mortgages, Convey-
ances; deeds of trust, bonds for title, cove-
nants, defeasances or other instruments of writ-
lngconcerning any lands or tenements,or goods .
and chattels, or movable property of any descrip-
tion; provided, however, that in cases of sub-
,dlvision or re-subdivision of real property no
map or plat of any such subdivision or resub-
division shall be filed or recorded unless and
.
Ron. Donald Allums - Page 4
until the same has been authorized by
the Commissioners1 Court of the county .
in which the real estate is situated by
order duly entered in the minutes of
said Court, except in cases of partitio'n
or other subdivision through a,Court of
record; provided, that within incorporated
cities and towns the governing body there-
of in lieu of the Commissioners' Court
shall perform the duties hereinabove im-
posed upon the Commissioners' Court."
(Emphasis ours) '.
In view of the plainprovisions In the above
quoted statutes, it is our opinion that the county clerk
has no authority to register conditional sales contracts
unless the instrument has been vltnessed by two or more
subscribing witnesses or aoknowledged or proven for re-
cord as provided under the foregoing Articles.
Conditional sales in Texas are treated
as chattel mortg,ages. The county clerk is not
authorized to receive and file .such instru-
ments unless the same shall have been witnessed
or acknowle ed as provided by,law. Arts. 5490,
5489, 5492, "%609 and 6626, V.C.~S.
Yours very truly
ATTORNEY
GENERALOF TEXAS
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. JR:djm '