R-446

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                         OFPICE        OF
         THE ATTORNEY                    GENERAL
                       AUSTIIV.TEXAS
                         June 10, 1947

Hon. Donald Allums         Opinion m.    v-239          i
Chnty Auditor
Hardin County              Re:   Registration    by the,
Kountee, Texas                   county clerk~of con-
                                 ditional   sales con-
                                 tracts.
Dear Sir:     ':
          Your letter requesting an opinion from this
Department on the above subject matter is as follows:
           "Certain business firms operating
     in Hardin County and other counties of
     thLs State, are requesting      that condi-
     tionsL'sales   contracts   be registered    as
     chattelmortgag~es    without being properly
     authenticated   by acknowledgment or wit-
     nesses, as required by law.        The'county
     clerk of Iiardin County is of the opinion
     that he has no authority      to register   such
     instruments unless same are acknowledged
     before some officer     authorized   to take
     acknowledgments and/or witnessed as pro-
     vided by-law:
         ~ ."will you please' furnish opinions.from
     ~that Department as to the construction       of
      this law. Articles       governing recording  and.      '
     registering      instruments are as follows,   to-
     wit:    Articles     5489, 5492; 6619, 6609, 6626
     and 6627.      Articles   5489 and 5492 seem to be
      the law under xhich said firms are trying to
     operate under.
                                    _.
            Article    5489 is as follows:
           "All reservation   of the title   to or
     property in chattels,    as security  for the
     purchase money thereof,    shall be held to be
     chattel mortgages, and shell,     when posses-
      sion is delivered   to the vendee, be void as
     to creditors   and bona fide purchasers,    un-
     3ess such reservations    be in writing and
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    Eon. Donald Allums - Page 2


          registered     as required of chattel mort-
          gages.     lipthing in this law shall be.
          construed to contravene        the landlord
          and tenant law. ’
                             .L
                 It was held in the case of Mente v. First
    National Bank of Amarillo,         206 8.W. 693, that where a
    sale is conditional,        In that the title   is to paas,
    not upon delivery        of the property but upon subsequent
    payment, in orders to affect,subsequent         purchasers or
    creditors,     the instrument must be filed as a chattel
    mortgage.     It was further held In the case of Willis
    Overland Company of California          Q. Chapman, 206 S.W.
978, that a conditional        sale of an automobile in Cali-
    fornia vhere it Is not necessary to register           the instru-
    ment, upon removal.of        the automobile to Texas by the
    purchaser,     it will be. considered a chattel mortgage and
    unless registered        in Texas will be vcid as against bonp
    fide purchaser.        It will be noted that e.r:cor&s; z.. L.-I
    foregoing    08888, conditional      sales in Texas are consiuer-
    ed chattel mortgages        and as such must be filed     in the
    county clerk’s      office   in order to affect    subsequent pur-
    chasers ‘or creditors.
                  We quote the following   pertinent   statutory
    provisions:
                 “Art. 5490.    Every chattel mortgage,
          deed of trust,     or other instrument of writ-
          ing, intended to operate as a mortgage, or
          lien upon personal property,      and every trans-
          fer thereof which shall not be accompanied
          by an immediate delivery      and be followed~by
          an actual andcontinued       change of possession
          of the property mortgaged, pledged, or affect-
          ed by such instrument,      shall be absolutely
          Void as against     the creditors  of the mortga-
          gor or person making same, aa against subse-
          quent purchasers and mortgagees or lien
          holders in good faith,      unless such instru-
          ment, or a true copy thereor,      shall be forth-
          with deposited vith and filed      in the office
          of the county clerk of the county where the
          property shall then.be situated,       or If the
          mortgagor or person making the same be a
          resident    of this State, then, of the county
          of wh$h he shall at that time be a resident;
           . . .
    Hon. Donald Allums - Page 3


                 "Art. 5492. Upon the receipt       of such
           instrument, the clerk shall lndorse thereon
           the day and hour when the same was deposited
           in his office   for the inspection     of all par-
           ties interested    until satisfaction    thereof
           shall be entered, as provided for in this
           chapter.    If a copy be presented to the clerk
           for filing,   instead of the original     instru-
           ment, he shall carefully     compare such copy
           vith the original,     and the same shall not be
           filed unless it is a true CODY thereof.        and
           unless the original     has been-witnessed-bgwo
           subscribing   witnesses or acknowledged or
           proven for record and certified       as required
           in case ~of other instruments for the purpose
           of being recorded."      (Emphasis ours)
                   "Art. 6609. The proof of any instrument
           of writing for the purpose of.being       recorded
           shall be by one or more of the subscribing
           witnesses personally      appearing before some
           officer    authorized to take such proof, and
           stating on oath that he or they saw the
           grantor or person who executed such instru-
           ment of writing subscribe the same or that
           the grantor .or person who executed such in-
           strument of writing acknowledged in his or
           their presence that he had executed the same
           for the purposes and consideration       therein
           stated; and that he or they had signed the
           same as witnesses at the request of the grantor
           or person who executed such instrument;        and the
           officer    taking such proof shall make a certlfi-
           cate thereof,      sign and seal the same with his
           official    seal."
                   "Art. 6626: The folloving       instruments of
      ‘.



            writing which shall have been acknowledued or
            proved according to law, are authorized         to be
            recorded,    vie:   all deeds, mortgages, Convey-
            ances; deeds of trust, bonds for title,         cove-
            nants, defeasances      or other instruments of writ-
            lngconcerning      any lands or tenements,or     goods .
            and chattels,     or movable property of any descrip-
            tion; provided, however, that in cases of sub-
           ,dlvision    or re-subdivision    of real property no
            map or plat of any such subdivision         or resub-
            division    shall be filed    or recorded unless and

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 Ron. Donald Allums - Page 4


       until the same has been authorized by
       the Commissioners1 Court of the county         .
       in which the real estate is situated by
       order duly entered in the minutes of
       said Court, except in cases of partitio'n
       or other subdivision      through a,Court of
       record;  provided,    that within incorporated
       cities  and towns the governing body there-
       of in lieu of the Commissioners' Court
       shall perform the duties hereinabove im-
       posed upon the Commissioners' Court."
        (Emphasis ours)   '.
             In view of the plainprovisions   In the above
 quoted statutes,    it is our opinion that the county clerk
 has no authority    to register conditional sales contracts
 unless the instrument has been vltnessed by two or more
 subscribing   witnesses or aoknowledged or proven for re-
 cord as provided under the foregoing Articles.


             Conditional   sales in Texas are treated
       as chattel mortg,ages. The county clerk is not
       authorized   to receive and file .such instru-
       ments unless the same shall have been witnessed
       or acknowle    ed as provided by,law.   Arts. 5490,
       5489, 5492, "%609 and 6626, V.C.~S.
                                         Yours very truly
                                     ATTORNEY
                                            GENERALOF TEXAS


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