68 N.Y.S. 915 | N.Y. Sup. Ct. | 1900
The execution and the levy made thereunder must be set aside for the following reasons, among others:-
Chapter 119 of the Laws of 1868 provides that it “ shall not be necessary to file as a chattel mortgage, any mortgage which has been, or shall hereafter be, executed by any railroad company upon real and personal property, and which has been, or shall be, recorded as a mortgage of real estate in each county in, or through which the railroad runs.”
In 1895 this act was amended by the omission of the words “ by any railroad company.” Laws of 1895, chap. 529. This act declares that “ It shall not be necessary to file or refile as a chattel mortgage any mortgage creating a lien upon real and personal property which has been or shall hereafter be executed by any corporation, as security for the payment of bonds * * * where such mortgage is recorded as a mortgage of real estate in each county * * * in which the real estate of said corporation included in said mortgage is located.” In all other respects this amendatory act is, in substance and effect, the same as the act of 1868. It is true that the title of the act of 1895 is entitled “An act to amend chapter seven hundred and seventy-nine of the Laws of eighteen hundred and sixty-eight, entitled ‘An act in reference to mortgages executed by railroad companies ’ ”. There is, however, nothing ambiguous or obscure in the act itself, and it is only where there is such obscurity in the body of an act as to leave it in doubt as to the meaning and intent of the Legislature that resort is had to the title for the purpose of ascertaining and determining such intent. Hadden v. The Collector, 5 Wall. 107.
In the case cited, Field, J., says: “ The title of an act furnishes little aid in the construction of its provisions. * * * It cannot be used to extend or to restrain any positive provisions contained ■ in the body of the act. It is only when the meaning is doubtful that resort may be had to the title, and even then it has little weight. It is seldom the subject of special consideration by the legislature.”'
Moreover, it is a general rule that where one statute amends another “ so as to read as follows,” it operates to repeal all of the provisions omitted from the amended law.
In Matter of Prime, 136 N. Y. 347, Chief Justice Andrews at page 355, says: “We conceive the general rule to be that when a statute amends a former statute ‘ so as to read as follows ’ it operates as a repeal by implication of inconsistent provisions in the former law, and of provisions omitted in the amended law.” The statute of 1895 amends that of 1868 “ so as to read as follows ”, and, therefore, the rule cited applies.
The mortgage in question was executed, and the bonds thereunder issued subsequent to the act of 1895, and it is clear, therefore, to my mind that there was no legal requirement that this mortgage should be filed as a chattel mortgage. The contention of counsel for Valentine, therefore, in this respect fails.
I have been cited to the case of State Trust Co. v. Casino Co.,
It will be observed that all of the statutes above cited have reference only to mortgages of both real and personal property. The remark of the learned judge who delivered the opinion in that case is clearly obiter, and is followed by the expression “ If, however, this should be so,” and thereupon he proceeds to decide the case wholly upon other grounds.
It will be observed that the judgment recovered by Valentine is upon two coupons, which had been attached to the bonds owned by Dickson, and were purchased by Valentine after they became due. These coupons derive their vitality from the bonds to which they were attached, and the bonds are in all respects subject to the terms and conditions of the mortgage. They and the mortgage are to be read together, and constitute practically one instrument. "Whoever takes a bond takes it subject to the conditions and provisions of the mortgage. Valentine, by suing upon these coupons and recovering a judgment, asserted the validity of the bonds, and necessarily, therefore, the validity of the mortgage, so that he cannot now be heard to dispute its validity. It does not appear that there are any other creditors of the Steel Company than the holders and owners of the bonds and coupons secured by the mortgage in question. There need, therefore, be no apprehension that any portion of the property covered by this mortgage can be seized and appropriated by means of judgments and executions by any creditor who does not sustain to the mortgage a like relation to that of Valentine. Valentine is one of a class. He stands in the same relation to the mortgage as every other coupon-holder and as every other bondholder. He cannot be permitted, by procuring a judgment and execution and levy thereof upon the property of the company, to obtain any advantage over other creditor’s of the same class, the rule of law being that the holder of unpaid coupons detached from mortgage bonds may sue at law and recover a judgment for his unpaid interest, but he cannot, nevertheless, cause the execution to be levied upon the property covered by the mortgage, because that property has been conveyed to the trustee under the mortgage in trust for all the bondholders, and because
There are other reasons, unnecessary to' be stated in this brief memorandum, which are also sufficient in my mind to require the granting of this motion.
Motion granted.