dissenting:
I am unable to concur in the conclusion announced in this case, or the reasoning by which it is readied. It was stipulated that copies of the mortgage and other documents therein referred to, might be read in evidence in place of the originals. They were found on file in the case, and the clerk, after copying them, certifies that the transcript thus made is a true, perfect and complete record of the proceedings in the case. It is therefore reasonable to conclude that they were read on the hearing. The bill described the mortgage, its foreclosure and the sale of the property, and its purchase by defendant in error, as grounds for the relief sought. To succeed, defendant in error was compelled to prove the existence of the mortgage as alleged, and I am compelled to believe that the copy was read in evidence. The stipulation was made to enable defendant in error to so read it, and as they could not have recovered without reading it or the original, and as the original is not on file in or among the papers in the case, and the copy is, the conclusion, to my mind, is irresistible, that the copy was read in evidence. Had a deposition been so filed the presumption would be that it was read, although there was no certificate by the court, that it had been. Then why exclude the copy of the mortgage thus found, and when it had been agreed that it might be read? In regard to reading depositions, there are no stipulations that they may be read, but the parties have a right to read them on a hearing, and because of that right the law presumes they -were read. So here, under the stipulation, complainant had the right to read the copy of the mortgage, and why not presume it was read ?
On turning to the copy of the mortgage, certified by the clerk to be a part of the record, we find that it was executed and acknowledged in the State of Ohio. Nor was there any, the 'slightest effort to conform to the Chattel Mortgage law, either in its acknowledgment, or having it entered on the docket of the justice of the peace, where the property was situated. The property on which the tax became a lien, was personal, and was included in the mortgage, and was of the character embraced in and referred to in the Chattel Mortgage law; and the railroad was an intangible person, and derived its entire power to make a mortgage by the statute, and, in doing so, it must conform to the statute authorizing the corporation to make or receive a mortgage. A failure to do so renders it void, as it would, if made by an individual, and no reason is perceived why there should be any distinction made between natural persons and corporate bodies. If there are reasons, it is for the General Assembly, and not the courts, to allow them. The Chattel Mortgage law, in terms, embraces all mortgages on chattels. This court has uniformly held, and in many cases, that, in executing such instruments, a failure to comply with the statutory requirements renders them void as to third persons, and for the same reason I regard this mortgage as void so far as it related to personal property.
If it was void, as I think it was, although prior in date to the tax warrants, as against them the mortgagee or trustee did not acquire a superior lien. When the warrants were delivered to the collectors, they became a lien superior to that of the mortgagee, and a foreclosure could not affect that lien, as it had attached long before complainant acquired title. The warrants still remained in the hands of the collectors, but had not been executed because of restraining orders and injunctions, until after the foreclosure and sale of the property, under the decree. The State should not be thus deprived of the power to enforce the collection of its revenue, by such restraining orders.
I, therefore, hold that this decree should be reversed.