
    Common Pleas Court of Montgomery County.
    Central Acceptance Co. v. T. W. Mundy.
    Decided June 3, 1932.
    
      
      Scharrer, Scharrer, McCarthy & Hanaghan, for plaintiff in error.
    
      Marshall & Harlan, for defendant in error.
   Snediker, J.

This case is on error- to the judgment of the municipal court, civil division. The plaintiff in error failed in the court below to secure either an award from a jury or judgment from the court that it was the owner of and entitled to the immediate possession of a Chrysler brougham: The facts are these:'

In the fall of 1929 Homer Gebhart bought the car sought to be replevined and executed a chattel mortgage thereon to the Hudson & Essex Motor Sales. This chattel mortgage was executed at Franklin, Ohio and was subsequently delivered to the Central Acceptance Corporation by the Hudson-Essex Motor Sales, of which Erby Worley was the agent. When the mortgage had been signed by Gebhart a regular form of affidavit, showing amount due. from the mortgagor to the mortgagee, was ostensibly placed on the back. This was signed by Erby Worley and the oath appears to have been taken before S. D. Stotler, a Warren county notary public. He has signed his name and affixed his notorial seal.

It was about "this affidavit that the controversy arose in the court below. It was claimed by counsel representing Mundy that' the notary had never sworn' Worley as an affiant • and that therefore the chattel mortgage was not so complete as to be properly filed and was not notice to Mundy who subsequently came into possession of.' the automobile. . .

The testimony about this affidavit which is most impressive is. that of Worley found on pages 69 and 70 of. the transcript. It reads, as follows:

“Q. Now turn on the outside (referring to mortgage). You notice there' the amount — that' is, the amount?

- A.- Yes, sir; $900.00. '

"Q. I will hsk you-what you did with that after you signed? I will ask you' who made out that chattel'mortgage?

A. Mr. Harry Robinson was working for me at that time, that is his writing.

Q. That is his writing, is it?

A. Yes, sir.

Q. That was his deal?

A. Yes, I think he made the deal on this.

Q. Now I will ask you, after you signed those papers what did you tell Mr. Robinson to do?

A.' I told him to take them and have them notarized and I would take them to the bank and get the money.

Q. Did you give him any money to be notarized?

A. I gave him a quarter.

Q. Who has signed that as notary public or justice, according to that?

A. Mr. Stotler.

Q. Weren’t you ever sworn and taken oath as to the truth of that affidavit before Squire Stotler?

(Controversy between counsel)

Q. Answer that question.

A. No.

Q. You did not?

A. No, sir.

Q. Were you in his presence when he signed, Mr. Worley?

A. When who signed?

Q. When Mr. S. D. Stotler signed as justice of the peace.

A. No, sir.

Q. Did you ever raise up your right hand and swear to the truth of this before Squire Stotler?

A. No, sir, never did.

Q. Never thought it was necessary, did you?

A. No, sir.”

The General Code, in that part of the statutory law relating to chattel mortgages, reads, at Section 8564, as follows: ■

“The mortgagee, his agent or attorney, before the instrument is filed must state thereon under oath the amount of the claim and that it is just and unpaid, if given, to secure the payment of a sum of money only * *

.. The importance of this affidavit has been frequently passed upon by the courts and its purpose has been discussed. . . ......

- As.quoted- by the’ trial -court, Judge Minshall, in the Benedict case, 58 Ohio St., at page 584, said:

“The mischief intended to be remedied by Section 4154 (our present G. C. 8564) was the giving of colorable mortgages by debtors for the purpose of covering up their property and hindering and delaying honest creditors in pursuit of their legal remedies against them. The statement required by this section to be made under oath by the mortgagee on the mortgage as to the amount of his claim, and that it is just and unpaid, is vital to the spirit of the statute, in the light of the mischief it was intended to prevent. It subjects the conscience of the parties to the severe test of an oath as to the amount and justice of his claim to be secured by the mortgage.”

This affidavit is important because the chattel mortgage is not complete so as to be entitled to filing until it has been made.

In the case of Cross, Trustee, v. Karstens, found in the 49 Ohio St., page 548-575, Judge Speer, in the opinion, says:

“The common law having been changed by statute, it would follow by force of a familiar principle that the requirements of the statute should fully be complied with by those who seek to avail themselves of its provisions. This rule is recognized by numerous decisions of this court. 8 O. S., 509; 16 O. S., 209; 25 O. S., 549; 37 O. S., 378; 42 O. S., 125; 45 O. S., 625, are authorities to the proposition that a failure to comply with the requirements of the statute is fatal to the attempted lien. These cases are instructive as showing the strictness with which the court has held parties to a compliance with the statute and that defective instruments or affidavits may not be cured.”

On a little reflection counsel will readily recognize the propriety of this holding of the Supreme Court and of the authorities generally. The so-called affidavit in the instant case was no affidavit. It was signed by the notary under circumstances which made his act illegal and fraudulent. Illegality and fraud vitiate whatever they touch and destroy the effect of that of which they are a part.

We are fully satisfied with the decision of the municipal court and are of the opinion that it should be sustained.  