
    Augustus Curtiss v. William McDougal.
    1. Under the act of February 24, 1846 (S. & 0. 475), and the amendments thereto, the office of the county recorder is made the place for the deposit of chattel mortgages only when the instrument is executed by a resident of the township where such office is kept, and, if the mortgagor be not a resident of the state, when the mortgaged property is in such township at the time of the execution of the mortgage.
    .2. Where a township or a part of a township is annexed to the corporate limits of a city or village wherein the office of the county recorder is kept, but is not a part of the township in which the office is kept, such recorder’s office does not become the place for deposit of chattel mortgages executed by residents of such annexed territory.
    
      8. Where the corporate limits of a city or village become identical with those of a township, and the office of the township clerk is thereby abolished, as provided in section 475 of the municipal code (66 Ohio L. 229), ■ the office of the clerk of such city-or village, under the provisions of section 477 of the same code,.becomes a depository for chattel mortgages.
    4. Where an infant purchases a chattel, and, at the same time in performance of the contract of purchase, executes to the vendor a mortgage on the purchased chattel to secure the payment of the purchase-money, he can not, on the ground of infancy, avoid the mortgage without also avoiding the purchase.
    6. Where the mortgage in such case has been properly deposited, a subsequent purchaser of the mortgaged property from the infant, takes it subject to the mortgage.
    Motion for leave to file a petition in error to the District ■Court of Summit county.
    On the 24th of September, 1878, one Robert McDougal, a minor, purchased of Thomas Carter, a team of mules, and at the same time executed a chattel mortgage upon the same property to secure the payment of the purchase-money. By the terms of the mortgage, the property was left with the mortgagor until maturity of the debt, subject to be taken by the mortgagee or his assigns whenever deemed necessary for the protection of the security. The mortgage was executed at the city of Akron, county of Summit, and within the limits of the Sixth ward, where the mortgagor resided and where the property was at the time.
    On the 29th day of the same month, the mortgage was deposited in the office of the recorder of Summit county, which office was kept in the city of Akron, but not in the .Sixth ward of the city. On the day last named, Carter sold and transferred the mortgage and all his rights therein to Augustus Curtiss, the plaintiff in error, and shortly thereafter Robert McDougal sold and delivered the mules to William McDougal, defendant in error, who, it appears, •purchased for a valuable consideration, and without actual ■notice of the mortgage. Upon learning of this sale by Robert to William, Curtiss demanded of William the possession of the mules by virtue of the condition in the mortgage, and thereupon William, being ignorant of his rights, as it is alleged, surrendered the possession to Curtiss. Afterward, William McDougal brought his action in replevin against Curtiss to recover possession of the mules. In this action an issue was joined as to the right of possession. The plaintiff claimed under the sale by Robert McDougal to himself, and the defendant claimed, as assignee, under the mortgage by Robert to Thomas Carter.
    It appears that previous to the year 1871 the city of Akron embraced within its corporate limits a portion of the territory of the township of Portage, where the office of the county recorder was and still is kept. In the year last named, the incorporated village of Middlebury, whose corporate limits were identical with those of the township of Middlebury and adjacent to the city of Akron, was duly annexed to the city of Akroü, and thereby and thereafter became and was the Sixth ward of the city of Akron.
    Now, on the trial of the original action (the above-named replevin suit), in the Court of Common Pleas, the plaintiff' requested the court to charge the jury “ that unless they should find from the evidence that said chattel mortgage, so filed with the recorder, was made and delivered by a person resident of the township in which said county recorder’s office was situated, or that the mortgaged chattels were situate in the township in which was situate said recorder’s office, then they must find that the filing of said chattel mortgage was not per se notice to plaintiff of such incumbrance or lien.” The court refused to charge as requested, but did charge “ that if they should find said mortgagor at the time of making said mortgage was a resident of the township of Middlebury, and that said township territory had before that time been legally annexed to the city of Akron as a part of said city corporation, and thereby said territory embraced in said township of Middle-bury had become a part of the city of Akron, and although the township of Middlebury still maintained, so far as the office of justice of the peace is concerned, its township organization, and still continued to elect and have a justice of the peace for said township, but did not elect or have a township clerk, then said recorder’s office was the proper place to file such mortgage so made by a resident of such township upon property located in the same.”
    The plaintiff also asked the court to charge the jury, “ that if they found that the mortgagor at the time of making the mortgage was a minor, that the mortgage was illegal, and could not be enforced against the mortgaged property; and that if said plaintiff had purchased and paid for said mules, and taken them into his possession, he was entitled to hold them as against the holder or owner of the •chattel mortgage, if said mortgage was made by a minor.” This request was also refused.
    Judgment on the verdict having been' rendered for the defendant, the District Court, on petition in error by the plaintiff', reversed the same for error in refusing to charge as requested, and in the charge as given.
    The defendant below now prosecutes this proceeding to reverse the judgment of reversal.
    
      H. W. Ingersoll, for the motion :
    I. As to the purchase of McDougal of the property without knowledge of the chattel mortgage, see Kanaga v. Taylor, 7 Ohio St. 134.
    2. Was the chattel mortgage improperly filed in the recorder’s office of Summit county ? The territory of Middlebury was in fact composed of Portage township. Upon its corporate territorial dissolution, all of it fell into and was merged in the city of Akron, and by division was its Sixth ward, with no more or less powers than either of the other four wards, except a justice of the peace granted it.
    Akron is in Portage township, a part of Middlebury also, and all of Middlebury in Akron. And under the sixth section of the law (S. & 0. 475), the mortgage was properly -deposited with the county recorder.
    Shall the mortgagee, for want of a township or clerk, hold his. mortgage in his pocket, and both parties residents-of the city of Akron? It would be fraudulent and void.
    3. As to the legal effect of a chattel mortgage upon the "chattel, see Butler $• Vosburgh v. Miller, 1 N. Y. 496; Kanaga v. Taylor, 7 Ohio St. 141.
    4. None but the infant himself, or his legal representative, can avail himself of minority as a defense. 1 Parsons on Contracts, 275; 1 Cooley’s Blackstone, 464, and note 15. And this defense is to be used as a shield, not a weapon.. Sheldon’s Lessee v. Newton, 3 Ohio St. 494; Zoucher v. Parsons, 3 Barr, 1800; Starr v. Wright, 20 Ohio St. 97.
    On the contracts of infants, see 10 Peters, 69; 6 Conn. 494; 11 111. 158; 5 Ohio, 252; Henry v. Root, 33 N. Y. 542, and cases cited; Kitchen v. Lee, 11 Paige, 107; 3 Yt. 353 ; 4 Bacon Ab. 376 ; 4 McCord, 241; 2 Paige, 191; 1 Dana,. 45; 15 Mass. 359.
    
      N. W. Goodhue, contra:
    The statute (1 S. & C., sec. 2) provides when chattel mortgages shall be deposited. The only exception to this-section is section 7 of the same act. The statute upon this subject is not directory, but mandatory.
    The depositing the mortgage in the recorder’s office was no notice, constructive or otherwise, to the defendant in error, because the recorder’s office is in Portage township, and Middlebury, where the mortgagor resided and where the mortgaged property was situated, is an independent township by itself.
    In answer to the claim that if there was no township-clerk, there must be some place where the filing of a mortgage will be constructive notice, etc., we say the court and. suitors are not answerable for what tbe law, in the opinion of some, ought to be, but only for what the law is.
    A township clerk was elected for Middlebury in September, 1873, but he innocently refused to qualify. Suppose that the office of township clerk should, by any reason, become vacant in any other’ township of the county, can it be pretended that if any resident of such township should; make a chattel mortgage during such vacancy, that the recorder’s office would be a proper place to deposit such mortgage ?
    On the question of infancy, see 1 Story on Contracts, 108; 11 Johns. 539; 14 lb. 124; Tyler on Infancy and Coverture, 70.
   McIlvaine, C. J.

By the statute of February 24, 1846, and the amendments thereto, a chattel mortgage, not accompanied by possession in the mortgagee, is declared absolutely void as against a subsequent purchaser in good faith, unless the mortgage be forthwith deposited with the clerk of the township where the mortgagor resides, if he be a resident of the state, and, if not a resident of the state, with the clerk of the township where the mortgaged property may be at the time of the execution of the mortgage,—save only that “ in all townships in which the office of the recorder of the county is kept, such instrument shall be deposited with him, and he shall perform the duties imposed upon and be entitled to the fees provided for township clerks in this act, and his certificate shall have the same force in evidence.”

Under this statute, and in the absence of other legislation, it would be perfectly clear that the Court of Common Pleas erred in refusing to charge as first requested and in charging as it did, as it will be observed that this statute does not make the office of the county recorder a place of deposit for mortgages executed by residents of the city or village, or on property situate in such city or village, but only for those so made within the township where it is kept. It is contended, however, that by force of other legislation, the office of the recorder of Summit county, although kept in the township of Portage, was the proper depository for chattel mortgages executed by residents of Middlebury township, because the township of Middle-bury was embraced within the corporate limits of the city of Akron, wherein also the recorder’s office was kept.

The theory upon which this contention is based, as we understand it, is, that by the annexation of the territory of Middlebury township to the city, the organization of the township was merged into that of the city, except for the purpose of electing justices of the peace and constables. If this were true, still we can not see how the recorder’s office in Portage township became the proper depository for mortgages executed by residents of the territory formerly embraced in Middlebury township, unless it be further shown that such territory was also annexed to and became part of the township of Portage.

It is not claimed, however, that these townships have been consolidated, or that any change has been made in their boundaries.

But it is not true that the organization of the township of Middlebury was at all affected by the annexation of its territory to the city of Akron. Section 475 of the municipal code provides, “ Whenever the corporate limits of any city or incorporated village become identical with those of any township, then and thereafter the office of township trustees, township treasurer, and township clerk shall be abolished and cease.” But the limits of the city of Akron and Middlebury township did not become identical, and therefore this section did not apply. Hence, if these township offices in the township of Middlebury had an existence down to the date of the annexation of the village of Middlebury to the city of Akron, they exist still, and the office of such clerk was a proper place for the deposit of chattel mortgages. A vacancy in such office, by failure to elect a clerk or otherwise, could not change the place of deposit for such mortgage, prescribed in the statute in relation thereto.

By the annexation of this Middlebury territory to the city of Akron, a proper ease arose for a change of township boundaries by the commissioners of Summit county, as provided in sections 480 and following of the municipal code, but, per force of the statute itself, the annexation effected no such change.

Before the annexation of the incorporated village of Middlebury to the city of Akron, it appears that the corporate limits of the village were identical with those of the township of Middlebury. If this coincidence first occurred before the enactment of the municipal code, May 7, 1869, there was, at the time, no change effected in the organization of the township. Before the municipal code, the township offices of trustee, treasurer, and clerk ceased in certain cases where the limits of the township became identical with those of a city, but no change was effected where its boundaries became identical with those of an incorporated village.

Conceding, however, that per force of section 475 of the municipal code, the office of township clerk in the township of Middlebury was abolished and ceased during the period when the township limits were identical with those of the incorporated village, the duties of the office were not remitted, but were transferred to the clerk of the incorporated village by section 477 of the code. Hence, the office of the clerk of the village became the place for deposit of chattel mortgages for the time being, but when this office ceased to exist by reason of the annexation of the village to the city, it appears to me that the office of township clerk was revived, the limits of the township being no longer identical with those of any municipal corporation.

If these views be correct, there has ever been within the township of Middlebury an office, which is the only place where chattel mortgages executed by residents of the township may be deposited. If they be not correct, then in my. opinion Middlebury township is without a depository for chattel mortgages; for, by no reasonable construction, can the recorder’s office of Summit county be held a proper place for such deposit, except for those mortgages executed by residents of Portage township, or, if the mortgagor be not a resident of the. state, then of those where the mortgaged chattels are situate in said Portage townshij).

"We have been referred to an act supplementary to the .act to regulate the election, etc., of justices of the peace (69 Ohio L. 23), which provides “ that in all cases where-the corporate limits of any city or incorporated village-are no-w or hereafter may become co-extensive with the-limits of any township in which said city or incorporated village is or shall be situate, and in which the township has been or may become merged in any city or incorporated village, the corporate existence of such township shall nevertheless continue for the purposes of electing justices of the peace and constables for such township,” etc.

"Whatever may have been the occasion of this enactment, whether to remove a doubt or to preserve an office-which would otherwise be abolished, it does not, by its-terms, purport to destroy the township organization in any case, or to merge it into that of a city or village; but if it did, and it were competent to do so, still such legislation, although the office of township clerk would be thereby abolished, would not constitute the office of a county recorder a depository for chattel mortgages.

We think the District Court did right in reversing the-judgment of the Common Pleas for error in refusing to charge as requested and in the charge given on this branch of the case.

It is also claimed that the Court of Common Pleas erred in refusing to charge that the chattel mortgage was void by reason of the minority of the mortgagor. This claim is based on the theory that by the subsequent sale of the mortgaged property to the plaintiff below, the mortgagor disaffirmed the mortgage, as he had a right to do, on account of his minority.

There was no error in this refusal. Without stopping to discuss the general disabilities or privileges of infancy, we hold that where an infant purchases a chattel, and at the same time, and in part performance of the contract of purchase, executes a mortgage on the purchased property to secure the payment of the purchase-money, it is not within the privileges of infancy to avoid the security given without also avoiding the purchase. If, in such case, the infant would rescind a part, he must rescind the whole contract, and. thereby restore to his vendor the title acquired by the purchase.

The privilege of infancy may be used as a shield, but not as a sword. And in such case, if the infant sells the mortgaged property, the purchaser takes it subject to the mortgage.

Motion overruled.

"Welch, White, Rex, and Gilmore, JJ., concurred.  