Daily globe. [volume] (St. Paul, Minn.) 1878-1884, 1878-05-24

instead of entering the names of the mortgagor
and MORTGAGE as appearing in said mortgage, said
clerk entered and indexed the of the assignee
and assignor of the same.'' It is further found
that on or about Sept 18th, 1875, defendant with
out any actual notice OF the mortgage purchased of
the mortgage all the property described therein
for $4,000; that prior to completing his purchase he
caused the records in the said city clerks Office to be
examined to ascertain if there were any chattel mort
gage lien upon the property, but that by reason of
said lrregularity in the entry of said mortgage he
failed to find any incumbrance and made such pur-
chase as aforesaid paying therefor the full purchase
price, and taking bill of sale of the property.
CHI 80, Gen. st. provides that every mortgage of
personal property which is not accompanied by an
immediate delivery ETC., shall be void, unless, among
other things, the mortgage true copy thereof is
filed as herein" tier provided. Section 2 reads as
follows: "Every such instrument shall be filed in
the town or city where property morgaged is at the
time of the execution of such mortgage. = In each
town such instrument shall be fled in the Office of
the town clerk thereof and in the several cities in
the Office of the recorder, clerk or other officer in
whose custody the records Of the city are kept and
each of the officers hereinbefore named shall file all
such instruments when presented for such purpose,
indorse thereon the time of reception, the number
thereof, and shall enter in suitable book to be pro-
yided by him with alphabetical index
thereto under the head of 1nortgagors respectively
the names of each party to such instrument and in
separate columns the number of the instrument the
date, the amount secured thereby, when DUE the
date of filing the same. Such instrument or copy
shall remain on file for the inspection of all persons
interested.
Section 8, amended by Oh. SO, laws 1870, and by
Oh. so, laws 1876, provides that "every mortgage
filed in pursuance Of this chapter shall be held and
thereof, ~ but shall cease anu to be- noa
ce against creditors and subsequent mortgages and
purchasers in good faith after the expiration of two
years from the filing thereof provided that when the
debt, secured by the mortgage does not become due
within two years from the date of the mortgage the
holder of the same, may, within thirty days. before
the expiration of the two years, "e coyy of such
mortgage together with an affidavit, " stating the
amount claimed to be 'unpaid upon the mortgage
and "the filing of such copy and affidavit shall exten(
the effect of the original filing" for one year. Sec
ton provides that ga copy of any such mortgage
copy filed and endorsed, as aforesaid when duly
certified, shall be received in evidence with like
effect "as the original mortgage copy filed ant
| Endorsement"
Section 2referring to the notice of intention te
foreclose provided for in section T. that tn,
| notice with affidavit of service shall be filed
whenever the mortgage is filed, and when 60 filed
the same or copy thereof shall be admitted as evi
dence OF the giving of such notice. Section 10
which has been added to said chapter by Ch g. law,
| 1872, enacts that "when any mortgage filed under
the provisions Of this chapter has been paid, tn,
mortgage shall give to the mortgagor certificate
of payment and on the delivery Of such certiicat.
to the e 9fss re with whom the 'mortgage filed
his Office, endorsing thereon the name of the county
town, Cor city or village, and the true date of films
the same and shall keep and preserve said certificate
among the records in his Office, and shall write thu
word satisfied" with the date opposite to such mort
| gage in the book in which such mortgages ar,
entered" by section it is seyery morteaee filed
in pursuance Of this chapter which is made motto,
Of the existence and conditions of such mortgage
is important to ascertain what is meant by the wore
| 'hled." Is mortgage filed within the meaning O.
the statute when is delivered to, received by ant
kept by the proper officer in his office for the pur
pose OF notice mentioned in section 2, or does flnt
include all the other acts which the officer is required
to perform by section 2? AS to this question, w
think that the statute is its own best exposition.
In the first place, it is observable that section
requires the officer to file and ndorse and index. TIL
natura! inference is that the statute regards filing
| one thing, 1ndorsing as another, and indexinp a.
still another, ana that it does not employ the wore
| filing as including indorsing or indexing In til,
second place. it is not to be supposed, unless suci
supposlton is unavoidable that the legislature uses
| the'same word in two different senses in the SAM
statute much less that it does SO in the same secto.
or the same sentence.
| Now from the liberal quotations which we hay
made from the statute, it is perfectly clear that tn
Legislature has used the words ''le,'' "fled" ant
| ''hling," as including nothing more than deliy
cry OF an instrument to- and the receipt ond KEEPING
OF the same by the proper officer in his Office for thu
purpose mentioned in the statute Such is the cas-
IN that portion Of section 3, relating to the filing of
| copy and affidavit for the purpose of keeping tn
| mortgage alive, respects subsequent purchasers
&c. SO also in section 8. Neither of these section
required any indorsing or ndexing. So in section
and III, the distinction between filing and ineorsins
is clearly preserved, and it is important to observe
that the words "file,' "led' and "tiling are nso,
IN the sense spoken of in the sections and il
the same sentences in which found such EXPIRES
! slons as 'the mortgage is fled and "mortgap
| filed: and ''orignal fling.' Upon these consfsra
tons we are of opinion that the word "fled" as an
pied to the mortgage In sections l and 2, and VIVA
IL more important in section g. does not include tn,
| Endorsing and indexing prescribed by section q bu
that mortgage is filed within the meaning of tn,
statute when it is delivered to and received and ken
by the proper officer in his Office for the purpose a.
notice mentioned in the statute Irrespective of on
statute, we think that an inquiry for the ordinar,
meaning of the word ''fe' will lead to the same con
| clusion. 'File'' meant at common law "a threai
string, or wire upon which suits and other exhibit
| in courts and offices fastened or filed for tn,
more safe keeping and ready turning to the Same
| Wharton's Law Lexicon.
| Bonvier' s Law Dict. Within this definition pape
might be said to be filed when strung upon tn,
| fling having almost entirely gone out of use an
other mode of fling, the purpose of which is tn,
same, has taken it's place so that as Bonvier says
"a paper is said also to be filed when it is delivered
to the proper officer and by bin received to be ken
on hle This which we take to be the present ordi
nary sense OF the word s'fled,'' would be presumed
TO De the Legislative sense, unless the contrary il
made to appear. That the contrary does not appea,
1s quite manifest from our previous examination Of
the statute See Green Darlington l6 Ohio Stat,
| 548 O = ''''
If this one construction of the statute ia as VI,
think, it is the proper construction Parties have
right to rely and act upon it. It is therefore no
portan. SO iar as the question of construction is
concerned that it would be better policy (as it per
| haps would beg to make indorsing and indexing es
sental to the notice which it is the object Of the
statute to secure AS to defendants last point the
answer admits that the plaintiff demanded of the de-
PENDANT the of the articles sought to be
recovered IN this action, and "that defendant re-
fused to deliver to said plaintiff the possession there
OF, and has ever since held possession thereof ]" If
the court has in effect found the conditions of thu
PLAINTIFFS mortgage, such to eltitle him te
the possession of the property this is sufficient ad
mission Of wrongful detention thereof by defend.
ant and he may maintain this action of claim and de-
livery. No
His right to do 80 not at all affected by the clause
in the mortgage, authorizing him in case of defaul
to enter upon the premises and remove and sell the
mortgaged property. Judgment affirmed