64 N.Y.S. 640 | N.Y. App. Div. | 1900
The chattel mortgage under which the plaintiff claims the property in question was utterly void as against the judgment creditor, Albert Getman. Hot having been filed until some two months after its execution, it was_ void as against Getman from the time it was
Although the mortgage was, by force of the statute, void as against. Getman, from the time of its execution, he was not in a position to-avail himself of that fact, nor to make any claim to the property mortgaged, until by some legal process he had impressed upon it alien for the amount of his debt. But as soon as he had obtained, his judgment and issued execution to the sheriff, he had acquired that lien ; and from that time his right to- take possession of the* property and appropriate it to the satisfaction of his debt was superior to the plaintiff’s claim.
It is claimed by the .plaintiff that the defendants proceeded in an irregular manner to take and sell the property, and that, hence, this, .action may be maintained.
There is no dispute but that execution had been regularly issued, to the sheriff of Schoharie county on Getman’s judgment, and that, the defendant Schoolcraft was the sheriff’s deputy and authorized to-execute it. From the time of the issuing of such execution, Get-man had obtained the lien which authorized him to take the property as against the plaintiff’s mortgage. Even if it be conceded that, the issuing of the duplicate execution, under which the sale was had,, was an irregularity, nevertheless, the proceeding by the defendants-was but a taking of this property for the satisfaction of Getman’sjudgment. It was applied on such judgment, and the plaintiff’s only interest in such property being that which he acquired through, this mortgage, he cannot complain of such application, inasmuch as his mortgage, as against- such judgment, is utterly void.
If, under the circumstances of this case, the issuing of the duplicate execution was irregular without an order of the court, it but rendered the process voidable at the option of the defendant. It hvas not void, and, hence, none but the defendant in the execution, could take advantage of such irregularity. It was so decided by the General Term in this department in the case of Horton v. Borthwick, reported in 15 Weekly Digest, 309, 310.
As to the claim that the execution has never been regularly returned, I do not see that it would in any way affect the plaintiff’s rights as a mortgagee if it never is returned.
I conclude that the judgment should be affirmed, with costs.
All concurred.
Judgment affirmed, with costs.