R-446



## OFPICE OF ’ - ” ,- : ~.. 

# THEATTORNEY 

# GENERAL

AUSTIIV.TEXAS

June 10, 1947

Hon. Donald Allums Chnty Auditor Hardin County Kountee, Texas

Dear Sir: ': Opinion m. v-239 i
Re: Registration by the, county clerk~of conditional sales contracts.

Your letter requesting an opinion from this Department onthe above subject matter is as follows:

"Certain business firms operating in Hardin Countyandother counties of thLs State, are requesting that conditionsL'sales contracts be registered as chattelmortgag~es without being properly authenticated by acknowledgment or witnesses, as required by law. The'county clerk of Iiardin County is of the opinion that hehas noauthority to register such instruments unless sameare acknowledged before someofficer authorized to take acknowledgments and/or witnessed as provided 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, towit: Articles 5489, 5492; 6619, 6609, 6626 and 6627. Articles 5489 and5492 seemto be the lawunder 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 moneythereof, shall be held to be chattel mortgages, and shell, whenpossession is delivered to the vendee, be void as to creditors andbona fide purchasers, un3ess such reservations be in writing and,

Eon. Donald Allums - Page 2

registered as required of chattel mortgages. lipthing in this law shall be. construed to contravene the landlord andtenant law.’

.L It washeld in the case of Mentev. First National Bankof Amarillo, 2068.W. 693, that where a sale is conditional, In that the title is to paas, not upondelivery of the property but upon subsequent payment, in ordersto affect,subsequent purchasers or creditors, the instrument mustbe filed as a chattel mortgage. It wasfurther held In the case of Willis Overland Companyof California Q. Chapman,206S.W. 978, that a conditional sale of anautomobile in California vhere it Is not necessary to register the instrument, uponremoval.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 consiuered chattel mortgages andas such mustbe filed in the county clerk’s office in order to affect subsequent purchasers ‘or creditors.

Wequote the following pertinent statutory provisions:

“Art. 5490. Every chattel mortgage, deed of trust, or other instrument of writing, intended to operate as amortgage, or lien uponpersonal property, andevery transfer thereof which shall not be accompanied by animmediate delivery andbe followed~by anactual andcontinued change of possession of the property mortgaged, pledged, or affectedby such instrument, shall be absolutely Void as against the creditors of the mortgagor or person making same, aaagainst subsequent purchasers andmortgagees or lien holders in good faith, unless such instrument, or a true copy thereor, shall be forthwith deposited vith andfiled 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 samebe a resident of this State, then, of the county of wh$h he shall at that time be aresident;

. . .Hon. Donald Allums - Page 3

‘

. "Art. 5492. Uponthe receipt of such instrument, the clerk shall lndorse thereon the dayandhour whenthe samewasdeposited in his office for the inspection of all parties 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 instrument, he shall carefully compare such copy vith the original, andthe sameshall 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 andcertified as required in case ~ofother instruments for the purpose of being recorded." (Emphasis ours)

"Art. 6609. Theproof 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 onoath that he or they sawthe grantor or person whoexecuted such instrument of writing subscribe the sameor that the grantor .orperson whoexecuted such instrument of writing acknowledged in his or their presence that hehad executed the same for the purposes andconsideration therein stated; andthat he or they had signed the sameas witnesses at the request of the grantor or person whoexecuted such instrument; andthe officer taking such proof shall makea certlficate thereof, sign and seal the samewith his official seal."
"Art. 6626: The folloving instruments of writing which shall have been acknowledued or proved according to law, are authorized to be recorded, vie: all deeds, mortgages, Conveyances; deeds of trust, bonds for title, covenants, defeasances or other instruments of writlngconcerning anylands or tenements,or goods

. andchattels, or movable property of anydescription; provided, however, that in cases of sub- ,dlvision or re-subdivision of real property no mapor plat of any such subdivision or resubdivision shall be filed or recorded unless and

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until the samehas 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 andtowns the governing body thereof in lieu of the Commissioners' Court shall perform the duties hereinabove imposed 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 noauthority to register conditional sales contracts unless the instrument has been vltnessed by twoor more subscribing witnesses or aoknowledged or proven for record as provided under the foregoing Articles.

Conditional sales in Texas are treated as chattel mortg,ages. Thecounty clerk is not authorized to receive andfile .suchinstruments unless the sameshall have been witnessed or acknowle 5489, 5492,"%edas provided by,law. Arts. 5490,

609and6626, V.C.~S.

Yours very truly

. . ATTORNEY GENERAL

OFTEXAS

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