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AQUILINA v. DOAN (06/26/53)

June 26, 1953

AQUILINA
v.
DOAN, APPELLANT



Appeal, No. 161, Jan. T., 1953, from order of Court of Common Pleas of Clearfield County, Aug. T., 1951, No. 7, in case of James Aquilina v. David G. Doan and Claude Smith. Order affirmed.

COUNSEL

Clemens Simon, with him John J. Pentz and Pentz & Silberblatt, for appellants.

James H. Prothero, with him W. Albert Ramey and Francis J. Mottey, for appellee.

Before Stern, C.j., Stearne, Jones, Bell, Chidsey, Musmanno and Arnold, JJ.

Author: Chidsey

[ 374 Pa. Page 406]

OPINION BY MR. JUSTICE CHIDSEY

This proceeding was initiated by a bill in equity which prayed for the reformation of a release of chattel mortgage and also for an order directing defendant Smith to surrender a bill of sale for a certain bulldozer for correction.

The bill disclosed that both defendants resided in Jefferson County and the equipment in question was also in Jefferson County, and prayed for extraterritorial service under the Act of April 6, 1859, P.L. 387, as amended, 12 PS ยง 1254. Defendants filed an appearance de bene esse, objected to the service and moved that the bill be stricken off. This motion was refused by the chancellor. The defendants then filed separate answers.

On December 30, 1950 a chattel mortgage in the amount of $10,000 covering two bulldozers and one power shovel was executed by defendant Doan as mortgagor

[ 374 Pa. Page 407]

    in favor of plaintiff as mortgagee. Doan's signature on the mortgage was acknowledged before a notary public, but the space provided in the mortgage form for the signature of a witness was blank. This chattel mortgage was filed in the office of the Prothonotary of Clearfield County within ten days of its execution. The serial numbers on the various pieces of equipment covered by the chattel mortgage were furnished by defendant Doan. One of the bulldozers (8R6297) was in much better condition than the other (IH3089). Plaintiff knew nothing about the serial numbers of the respective bulldozers.

Subsequently, on June 9, 1951, after Doan expressed a desire to sell the equipment separately, a second chattel mortgage on the same equipment was executed between the same parties in the amount of $11,518, the increased figure apparently representing an additional loan from Aquilina to Doan. This mortgage was properly signed, acknowledged and witnessed, but was not recorded.*fn1 In the second chattel mortgage, bulldozer 8R6297 (the better one) was valued at $518, and bulldozer IH3089 (the poorer one) was valued at $5,500. These respective values were furnished by defendant Doan. At the same time separate releases from the lien of the chattel mortgage were prepared for each piece of equipment to be retained by plaintiff's attorney until the individual ...


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