81 N.J. Eq. 106 | New York Court of Chancery | 1913
The only point to be decided in this suit at this time is whether or not a chattel mortgage given by the defendant Lucas to the complainant, Gulden, is valid as against the defendant the Berghoif Brewing Company. The Berghoff Brewing Company was a creditor of Lucas, has obtained a levy and is legally in a
Mr. Kappes testifies, and he is not contradicted, either by other oral testimony or by written evidence, that Mr. Gulden left before the chattel mortgage was executed; that at the time that Gulden left everything had been agreed upon excepting the manner of repayment. After Gulden left, Kappes and Lucas agreed tentatively upon the matter just mentioned and the chattel mortgage was fully executed, acknowledged and in shape for record. Mr. Kappes, however, says that he had no right at that time to. accept, this mortgage on behalf of his principal, Mr. Gulden, and would not have such right until Mr. Gulden had been informed of the tentative agreement as to the terms of repayment (or payment, whichever phrase is the correct one). On Saturday, the 27th of November, 1909, Mr. Kappes, about the middle of the day (some time, he says, between twelve and one), saw Mr. Gulden, and Gulden approved of the mortgage as drawn, and Kappes left it with Gulden. On Tuesday, the 30th of November, 1909, at twenty-nine minutes after twelve o’clock noon, the mortgage was recorded.
The sole question is whether or not, under the statute and the decisions construing the same, this mortgage was recorded in time to save it from attack as against the existing creditor.
I had occasion, in the case of Brockhurst v. Cox, 71 N. J. Eq. (1 Buch.) 703; affirmed, 72 N. J. Eq. (2 Buch.) 950, to con-side]- the existing law in this respect; and since the court of errors and appeals adopted the .opinion filed in that suit, the rule is as stated therein. It was there held that the provisions of the Chattel Mortgage act require an immediate possession by the mortgagee, or an immediate recording of the mortgage, and that “immediate recording” means as soon as may be by reasonable dispatch under the circumstances of .the case.
. I feel constrained to hold that, in no proper use of language, can this be said to be an.“immediate recording” under the circumstances of the case. If “immediate recording” is extended so as to include more time than is reasonably adequate under the circumstances, the rule laid down is practically abrogated. I cannot find that the time consumed between the receipt of this mortgage by the mortgagee and its recording could reasonably have been utilized in getting the paper to the place of record. The result is that this mortgage must be held to be invalid as against the existing creditor.