5 F.2d 633 | 2d Cir. | 1925
The question presented is one wholly of New York law. If we can discover the rules laid down by the highest court of the state we are bound to follow them.
Mortgages of chattels were not unknown to the common law, and the general theory that such mortgage was a conveyance with a defeasance may be found stated in Pyeatt v. Powell, 51 F. 551, 2 C. C. A. 367; Langdon v. Buell, 9 Wend. (N. Y.) 80; Ackley v. Finch, 7 Cow. (N. Y.) 290. Speaking generally, it may be said that the object of most statutes providing for chattel mortgages, and certainly the object of the New York statute, is to make the recording of the mortgage equivalent as near as may be to that physical possession by the mortgagee which the common law always assumed. Kimball v. F. & M. Bank, 138 N. Y. 500, 504, 34 N. E. 337, 20 L. R. A. 497.
Consequently in New York “a chattel mortgage is a present transfer of the title to the property mortgaged by it, defeasible by the payment of the sum it is given to secure.” Barrett, etc., Co. v. Van Ronk, 212 N. Y. 90, 94, 105 N. E. 811. This defeasible title in the mortgagee leaves an interest in the mortgagor, which has been treated by the courts of the state like other property. Thus, before any default on the mortgagor’s part, he may sell or transfer the mortgaged chattel subject to the mortgage. Norton v. Shields, 174 App. Div. 369, 161 N. Y. S. 880, citing cases. Nor need the buyer know anything of the mortgage further than that theoretical knowledge produced by the record, for the buyer from the mortgagor before default gets whatever the mortgagor has. Hammill v. Gillespie, 48 N. Y. 556.
Before default also the mortgagor’s interest is subject to levy and execution on the theory that the sheriff can seize and sell as well as the mortgagor could convey; i. e., subject to the mortgage. Galen v. Brown, 22 N. Y. 37; Leadbetter v. Leadbetter, 125 N. Y. 290, 26 N. E. 265, 21 Am. St. Rep. 738.
But if the mortgagor defaults — i. e., fails to pay the sum secured by the mortgage or any part thereof when such part becomes due — the mortgagee’s defeasible title immediately becomes absolute by operation of law. Bragelman v. Daue, 69 N. Y. 69. Therefore, after such default and after such creation of absolute title in mortgagee, the mortgagor has no interest left that is subject to execution. Leadbetter v. Leadbetter, supra. Consequently, if the sheriff makes a levy, he may be sued therefor. Hall v. Sampson, 35 N. Y. 274, 91 Am. Dec. 56. And so may the plaintiff in the execution, who put the sheriff in motion. Manchester v. Tibbetts, 121 N. Y. 219, 24 N. E. 304, 18 Am. St. Rep. 816. See an emphatic summary of the foregoing in Porter v. Parmley, 52 N. Y. 185, at page 188.
Similarly the mortgagor himself can transfer no title after default, because he has nothing to transfer (Madill v. Donald, 187 App. Div. 761, 175 N. Y. S. 792, citing cases) ; and one who assumes to deal with a mortgaged chattel after condition broken may lose the chattel in replevin or be sued for a conversion (Madill v. McDonald, supra; Hathaway v. Brayman, 42 N. Y. 322, 1 Am. Rep. 524). Yet, though after default the mortgagor has no leviable interest, and the defeasance which affected the original conveyance is wiped out, the mortgagor still has a right or equity of redemption. It has been held that such equity plus indefinite possession constituted a leviable interest in Mattison v. Baucus, 1 N. Y. 295—a case of doubtful authority in our opinion, unless it be restricted to a ruling upon the exact facts presented, which render quite doubtful the existence of any declared default.
But this right of redemption existing after default may be cut off by a sale fairly made, whether the same be public or private. Coe v. Cassidy, 72 N. Y. 133, at page 138. And at such fair sale the mortgagee may buy. French v. Powers, 120 N. Y. 128, at 133, 24 N. E. 296. And see the most extensive review of the eases up to date of decision in Moore v. Prentiss & Co., 133 N. Y. 144, 30 N. E. 736; and, as to the convenience of the sale for cutting off the equity of redemption, see Briggs v. Oliver, 68 N. Y. 336.
Applying the foregoing New York rules to the ease at bar, we are of opinion that when, on the morning of December 24, 1923, the mortgagee by the auctioneer held a sale fairly conducted, such sale wiped out the last vestige of interest that the mortgagor had in the mortgaged chattel, and such chattel became the absolute property of the purchaser at the sale, to wit, the petitioner herein.
The trustee in bankruptcy, as may be admitted, not only succeeded to the rights of the mortgagor, but had also, under section 47 (Comp. St. § 9631), the rights of a creditor with' a judgment. But no aggregation of rights will avail unless there is something
It follows that the order complained of was in respect of this mortgaged chattel ill advised. The receiver or trustee had a bare possession, but there was no title in the trustee, and none could ever exist in him in respect of this chattel. Therefore it was error to make the order, and, in respect of the Babcock Optimus Press covered by a mortgage filed with the register of New York county on April 23, 1922, said order is reversed.
The petitioner having prevailed as to one mortgage, and been unsuccessful as to another on the same record, our direction, as to costs of November 3, 1924, is modified: There will be no costs of these appeals.