DISSENTING OPINION BY
GALBRAITH, J.The plaintiff’s right to maintain this action depends upon his title to the cane, the value of which is the subject of the suit. So far as the record shows his only serious claim to title is through possession taken by virtue of an unrecorded second chattel mortgage not followed by foreclosure proceeding. If as is found by the court recording is necessary to the validity of a chattel mortgage the plaintiff could have acquired no title to the property in the manner claimed and has no standing in court and his exceptions should be overruled.
The sections of the statute prescribing a form of certificate and what the same shall contain refer primarily to deeds, mortgages and instruments affecting real estate and do not in terms refer to chattel mortgages. Lenehan v. Akana, 6 Haw. 538, 540. There is no form set out in the statute for the certificate of acknowledgment for chattel mortgages but Section 1839 provides that to entitle any conveyance or other instrument to record it shall be acknowledged but this section also provides for the record of instruments that have not been acknowledged. And thus refutes the claim that none but duly acknowledged and certified instruments are entitled to record.
It appears that the notary who made the certificate testified at the hearing, without objection, that he prepared the mortgage and that it was signed by the mortgagors in his presence and that they each acknowledged it to be their free and voluntary act and deed.
This testimony, under the weight of authority, was incompetent and should have been excluded on objection or stricken out on motion but no objection was made to the admission of *578tbe evidence and no motion was made to strike it out after it bad been admitted. It was before tbe trial court and is before this court. Tbe testimony being uncontradicted and containing tbe elements of probability would under ordinary circumstances be taken as proving the fact to which it relates, namely, the ■“fact of acknowledgment”, as an independent fact. Is there any -reason why that fact may not be accepted as established in this case? This would at least avoid the paradox involved in the conclusion that the mortgage was void because not recorded although we know that it was spread upon the records. May we not proceed in the light of the fact that the mortgage was acknowledged but that there was some irregularity in certifying that fact and determine whether or not such irregularity shall be held to defeat the mortgage? From this view the inference is justifiable that the defect in the certificate of acknowledgment resulted from mistake or inadvertance.
The certificate endorsed on this mortgage, omitting the caption, is as follows:
“On this 18th day of August, A. D. 1899, personally appeared before me Chan Choon and Sing Lee, known to me to be the persons described in, and who executed the foregoing instrument who executed the same freely and voluntarily and for the uses and purposes therein expressed.” The certificate is properly signed by the Notary Public and attested by his seal. The Registrar’s certificate of registration is dated August 21, 1899.
The notary certifies in this certificate, (1) that the mortgagors personally appeared before him, (2) that he knew them to be the same persons described in and who executed the mortgage, (3) that these identical persons executed the mortgage freely and voluntarily for the uses and purposes therein expressed. If the notary had inserted in the proper place in the certificate the word “acknowledged” or in other words had certified the manner or how he came possessed with the information that enabled him to certify that the mortgagors “executed” the instrument the certificate would be in the usual form and not subject to criticism. Now does the omission of the word ae-*579knowledge! render tbe certificate useless and tbe mortgage void. Tbe notary certifies to tbe ultimate fact, tbe execution, but omits tbe evidence or source of tbe knowledge wbicb enabled bim to •certify tbat fact. I submit tbat be could only certify tbat fact from personal knowledge and tbat tbis personal knowledge could only have been obtained from tbe parties themselves, by their ■admission or acknowledgment. I insist tbat tbe certificate contains tbe essential elements and ought to be held sufficient, especially in view of the finding of tbe trial court, namely, tbat tbe plaintiff bad actual knowledge of tbis mortgage.
Even where a form of certificate is prescribed by statute a ■substantial compliance with the form is all tbat is required. Lev. Deeds, §§525, 526, and cases cited in note.
“It is tbe policy of tbe law to uphold certificates when sub.stance is found and not to suffer conveyances or tbe proof of 'them, to be defeated by technical or unsubstantial objections.” Carpenter v. Dexter, 75 U. S. 513, 526.
“Instruments like tbis should be construed, if it can be reasonably done, ut res magis valeat quam pereat. It should be tbe aim of courts, in cases like tbis, to preserve and not to destroy. Sir Matthew Hale said they should be astute to find means to make facts effectual according to tbe honest intent of tbe parties.” Kelley v. Calhoun, 95 U. S. 710, 713.
“Tbe rule is certainly well settled tbat a defective acknowledgment cannot be taken advantage of by parties having actual knowledge of tbe existence of tbe deed or mortgage.” (Citing Hilliard on Heal Property, 675, Sec. 36) ; Johnson v. Badger M. & M. Co. 13 Nev. 351, 355.
Again I am not willing to assent to tbe construction tbat has been placed on Section 1853 by tbe court in tbis case, namely, tbat it renders an unrecorded chattel mortgage absolutely void as to every one without regard to their rights or interest in tbe mortgaged property. Tbis decision, as I understand it, is directly contrary to a prior decision of tbis court construing tbat section, namely, Wright v. Brown, 11 Haw. 401, 403, bolding tbat a sheriff in possession of mortgaged chattels under an execution was not a “third party” within tbe meaning of tbis stat*580ute and therefore could not resist the title of a mortgagee claiming under an unrecorded chattel mortgage.
It certainly could not have been the intention of the legislature to declare an unrecorded mortgage void between the parties or as between the parties and others without interest in the. property or between a first and second mortgagee, the latter having notice of the first mortgage. The legislators are presumed to> have known that the object of recording instruments is to give notice and that notice may be given aside from the record and that the notice given by one method is just as effective as the other and ought not to be held, in the absence of plain words to that effect, to have intended by this statute to make recording the exclusive method of giving notice of the existence of chattel mortgages, etc. While the statute is not happily worded I am inclined to think that it was not intended to do more than is accomplished by most statutes providing for the registration of written instruments, namely, to provide that the interest of no one in property should be prejudiced by an unrecorded instrument of which he had no actual notice.