R-446 

OFPICE OF 

’ ~.. - ” ,- : 

THE ATTORNEY 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 on the above subject matter is as follows: 

"Certain business firms operating 

in Hardin County and other 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 he has no authority to register such 

instruments unless same are acknowledged 

before some officer 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 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 possession is delivered to the vendee, be void as 

to creditors and bona 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 

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 California vhere it Is not necessary to register the instrument, 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 consiuered chattel mortgages and as such must be filed in the 

county clerk’s office in order to affect subsequent purchasers ‘or creditors. 

We quote the following pertinent statutory 

provisions: 

“Art. 5490. Every chattel mortgage, 

deed of trust, or other instrument of writing, intended to operate as a mortgage, or 

lien upon personal property, and every transfer 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 affected by such instrument, shall be absolutely 

Void as against the creditors of the mortgagor or person making same, aa against subsequent purchasers and mortgagees or lien 

holders in good faith, unless such instrument, or a true copy thereor, shall be forthwith 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 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, 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 instrument of writing subscribe the same or that 

the grantor .or person who executed such instrument 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 certlficate thereof, sign and seal the same with 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 any lands or tenements,or goods . 

and chattels, or movable property of any description; provided, however, that in cases of sub- 

,dlvision or re-subdivision of real property no 

map or plat of any such subdivision or resubdivision 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 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 no authority to register conditional sales contracts 

unless the instrument has been vltnessed by two or 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. The county clerk is not 

authorized to receive and file .such instruments unless the same shall have been witnessed 

or acknowle 

5489, 5492, "% 

ed as provided by,law. Arts. 5490, 

609 and 6626, V.C.~S. 

Yours very truly 

. . 

ATTORNEY GENERAL OF TEXAS 

. JR:djm '