Henderson v. Morgan, 26 Ill. 431 (1861)

April 1861 · Illinois Supreme Court

26 Ill. 431

Charles M. Henderson, Appellant, v. Nathan Morgan, Appellee.

appeal from cook.

A chattel mortgage, to be valid, should be acknowledged before a justice of the peace of the election district in which the mortgagor resides.

This was an action of replevin brought by the appellant, who claimed the property as mortgagee, by virtue of a chattel mortgage. The mortgage was acknowledged by a justice of the peace in the town of North Chicago, and the mortgagor “ resided” in another town.

The appellee was a creditor of the mortgagor, and seized the property by virtue of a landlord’s warrant for rent due and unpaid from the mortgagor, the property being in the possession of the mortgagor when seized.

The Circuit Court held the mortgage invalid, and found for the defendant below.

Appellant assigns for error, the finding of the issues for defendant.

Helm & Clark, for Appellant.

Gookins, Thomas & Roberts, for Appellee.

Caton, C. J.

The acknowledgment of this chattel mortgage was insufficient. The statute says, the mortgagor “may acknowledge such mortgage before any justice of the peace in the justice’s district in which he may reside,” and there is no other authority in the statute for acknowledging, and it follows as a matter of course, the mortgage cannot have the effect prescribed by the statute, unless it is acknowledged in conformity to the statute. The word “ may,” in this statute, is imperative. The meaning of the statute is, that the mortgage shall be acknowledged before a justice of the district in which the mortgagor resides. It was for the legislature to determine where the mortgage should be acknowledged, and it is not for us to inquire whether it would not have been as well to have the acknowledgment and memorandum made in the district where the property was situate. The district in this statute means election district. The judgment is affirmed.

Judgment affirmed.