Petition for Revision and Appeal from the District Court of the United States for the Northern Division of the Western District of Washington.

In the matter oí the Wolverine Lumber Company, bankrupt. Appeal and petition for revision by Edward Mills, trustee, to review an order sustaining the validity of a mortgage by the bankrupt to Everett Smith.

The trustee in bankruptcy of the Wolverine I.r' ’ or Company, a bankrupt, brings before this court, both by petition for revs.,-ion and appeal, the order of the district judge modifying an order made by the referee in bankruptcy respecting the claim of the respondent and. appellee. On or about June 24, 1907, the corporation by its president and secretary signed a mortgage covering all the property of the corporation to secure a pre-existing indebtedness. The mortgage was in form a combination real and chattel mortgage. A certificate of acknowledgment was affixed to the mortgage, hut both the referee and the district judge found that the president of’ the corporation never appeared before a notary public to acknowledge the same. About a month after the date of the mortgage, an affidavit of good faith, as required by section 4558, Ballinger’s Codes of Washington (Pierce’s Code, § 6531), was prepared and mailed by the mortgagee to the president of the corporation, who affixed his signature thereto and returned it by mail to the mortgagee, and a jurat was affixed thereafter thereto by a notary public. The affidavit was then attached to the mortgage. These facts were also found by the referee and by the district judge. In the referee’s opinion it is said: “It is conceded in the briefs for the claimant: that, if the mortgage was accepted and placed upon record without the affidavit of good faith, it is void as against creditors, and for the greater reason it: must be held that, if such mortgage was not acknowledged by the officers of the corporation, it is without force.” The conclusion reached by the referee was that the mortgage was void and without force .as against the creditors represented by the trustee, and he therefore, allowed the claim as an unsecured claim. Upon a petition for review the district judge modified the order of the referee, holding the instrument void as a mortgage of real estate, hut valid as a chattel mortgage, upon the ground 1hat section 4558 of the Code had been repealed by the act of the Legislature approved March 13, 1899 (Laws Wash. 1899, e. 98). Section 4558 provides as follows: “A mortgage of personal property is void as against creditors of the mortgagor, or subsequent purchasers and incumbrances of the property for value and in good faith, unless it is accompanied by the affidavit of the mortgagor, that it is made in good faith, and without any design to hinder, delay or defraud creditors, and it is acknowledged and recorded in the same manner as is required by law in conveyance of real property.” The act approved March 13, 1899, is entitled “Chattel mortgages may he filed,” “An act relating to chattel mortgages and the filing thereof, and repealing of laws in conflict therewith,” but there is in the act itself no repealing clause whatever.

The portions of the act pertinent to the question here involved are the following:

“Section 1. Mortgages may be made upon all kinds of personal property, and upon the rolling stock of a railroad conipany and upon all kinds of machinery, and upon boats and vessels, and upon portable mills, and such like property and upon growing crops and upon crops before the seed thereof shall have been sown or planted: Provided, that the mortgaging of crops before the seed thereof shall have been sown or planted, for more than one year in advance, is hereby forbidden, and all securities or mortgages hereafter executed on such unsown or implanted crops are declared void and of no effect, unless such crops are to be sown and planted within one year from the time of the execution of the mortgage.

“Sec. 2. Every such instrument within ten days from the time of the execution thereof shall be filed in the office of .the county auditor of the county in which the mortgaged property is situated, and such auditor shall file all such instruments when presented for the purpose, upon the payment of the proper fees therefor, indorse thereon the time of reception, the number thereof, and shall enter in a suitable book to be xirovided 'by him at the expense of his county, with an alphabetical index thereto, used exclusively for that purpose, ruled into separate columns with axipropriato heads: ‘The time of filing,’ ‘Name of mortgagor;’ ‘Name of mortgagee,’ ‘Date of instrument,’ ‘Amount secured,’ ‘When due,’ and- ‘Date of release.’ ' An index to said book shall be-kept in the maimer required for indexing deeds to real estate, and the county auditor shall'receive for the services required by this act the sum of fifteen cents for every, instrument, and the moneys so collected shall be accounted tor-as other fees of liis office. Such instrument shall remain on file for the inspection of the public.

“See. 3. Every mortgage filed and indexed iu pursuance of this act shall beheld and considered to be full and sufficient notice to all the world, of the existence and conditions thereof, but shall cease to be notice, as against creditors 'of the mortgagors and subsequent purchasers and mortgagees in good faith, after the exxnration of the time such mortgage becomes due, unless before the expiration of two years after tlie time such mortgage becomes due, the mortgagee, his agent or attorney, shall make and file as aforesaid an affidavit setting forth the amount due upon the mortgage, which affidavit shall be annexed to the instrument to which it relates and the auditor shall indorse on said affidavit the time it was filed.”

Section 5 prescribes the form of a chattel mortgage for $100 or less. It was the opinion of the district Judge that the act of 1800 was a revision of the chattel mortgage law previously in force, and that it must be regarded as a complete substitute therefor, “the effect of it being to repeal the statutory requirements as to the acknowledgment and affidavit of good faith.”