Fassett v. Wise

McFarland, J., concurring.

I concur in the judgment of affirmance, and in most of the opinion of Mr. Justice Temple. I do not think that a chattel mortgage, which has never been recorded in the county where the property was situated at the time of the recordation, is good against a creditor or subsequent purchaser. Surely the latter is entitled to some reasonable opportunity of discovering whether or not there is a recorded mortgage on property which he contemplates buying or attaching. Upon inquiry, he learns that the property has, for several weeks, been in the county where it then is, and that there is no recorded mortgage in that county. Inquiring further, he finds that the property had several weeks before been brought from another county, where it had been continuously for several months previous to that time, and no mortgage had been recorded there-He thus learns that there has been no mortgage recorded in either county, and that there then could be no valid recordation except in the county where the property was then situated. Under these circumstances he could, in my opinion, safely proceed to purchase or attach. Section 2959 is no doubt somewhat obscure; but I think it is intended to provide for a case *322where the property is removed soon after the execution of the mortgage and before its recordation, and to declare that then the recordation must be in the county to which it has been removed—the county where the property is then situated. Under appellant's contention, a mortgagee might refrain from recording his mortgage until long after the property had been removed to a distant county, and then, getting information of a proposed sale or attachment where the property then was, defeat it by suddenly recording his mortgage in the original county. I do not think that the statute gives countenance to such strategy.