The reasons rendered by. the referee-at the special term for the disposition of the case made .in .the court below appear to me to be cogent and conclusive,, and I do not deem it necessary to enlarge upon them. I content myself with a-brief reference to some of the propositions advanced by'the counsel for the appellant.
1. It is said that the commencement of this action operar ted to confer upon the plaintiff .a specific lien upon the property in question, and that the mortgage of Husson was entirely inoperative against the plaintiff because it was not filed.
It is not necessary to discuss either of-these propositions, because the decision in favor of Husson is placed, upon a ground entirely distinct and. independent of these and consistent with the assumption that both of these propositions may be entirely correct.
2. It is said-that Husson’s mortgage being thus entirely void he was not in any way prejudiced by the sale. But, as to this, it must be observed: First, that Husson was not a party to the action, and has had no opportunity to set up, by answer or folly to establish by proof, what facts he might wish to present by way of obviating the necessity for filing his mortgage; second, Husson was undoubtedly prejudiced by the sale if it was not carried out in conformity with the stip
3. It is said that the alleged agreement, that Husson was to be paid out of the proceeds of the sale, was void as being without consideration, and being void could not operate as an estoppel against the plaintiff. First, this assumes what Husson has not had an opportunity fully to controvert, to wit, the invalidity of his mortgage. Second, the agreement was not without consideration. Husson at all events made a claim under his mortgage, and the claim was sufficiently plausible and colorable to operate as the foundation of a sufficient consideration to make some equitable arrangement in regard to it. The plaintiff had not treated it as invalid, nor made Husson a party to a suit to set it aside, and the court had expressly directed a sale subject to it. The bounden duty of the receiver was to conform to the order of the court, from which plaintiff had taken no appeal, and the latter was not therefore in a situation to attack the mortgage of Husson. But, apprehending that the mortgage of Husson might embarrass the sale and cause a sacrifice of the property if sold in parcels, the plaintiff made an explicit arrangement with Husson, which the plaintiff expected to be advantageous to him, but which he now wishes to repudiate,'that the property should be sold, discharged of the incumbrances which were to be paid out of the proceeds. I think the plaintiff is precluded from receding from his agreement by every consideration which enters into the idea of an' equitable estoppel.
í. It is said that the plaintiff acted in ignorance of the fact that the mortgage was not filed, and therefore should not be bound by the course of proceeding to. which he assented. First, it is probably true, though it does not appear to be expressly proved, that plaintiff was ignorant of the filing of the mortgage, but there is no pretense or proof that Husson fraudulently concealed that fact from him. The plaintiff had an opportunity and was bound to acquaint himself with the fact, and his neglect to do so was his own misfortune. He must be bound by his agreement if he was not inequitably aur
In every aspect in which I have been able to consider the case I think the order of the court below was right and should be affirmed.
The appeal is by the plaintiff from so much of the judgment as declares Husson to be entitled, as the holder of a chattel mortgage upon the property, to be paid out of the fund arising from a sale of such property under the order of the court. The action was by the plaintiff, a judgment creditor of the defendants Lutz, -Doll and Germann to set aside what was claimed to be, a fraudulent transfer of the property by them to the defendant Lambrecht, and to have the same sold, and the proceeds applied to the payment of his judgment. Husson, who held a chattel'mortgage on it, for a part of the purchase-money (the existence of which mortgage the assignees of the plaintiff had knowledge of, before obtaining a confession of the judgment), was not made a party. The court decided the sale and assignment to Lambrecht to be void, and instead of simply setting aside the
The objection" urged before the referee against considering Husson’s mortgage a lien upon the proceeds .of the sale was, that such mortgage was not filed at the time the plaintiff’s action was commenced. I do not think the objection valid. It was not important, as, affecting the rights of the parties, that the mortgage should have been on file when the suit was instituted. - As the statute declares, in terms, that an unfilled chattel mortgage shall be void as against the-creditors of the mortgagor, it is probable (although the mortgage in this cáse was but a -continuance'of a series of mortgages for
The creditor must have attached the mortgaged property and acquired a lien on it in some legal way before the question can be raised. If it be a judgment creditor, as in this case, his execution must be levied. Here there was no levy. Lambreeht was, at the time the execution was returned unsatisfied, the owner of the chattels and in possession, subject to Husson’s mortgage. By instituting an equitable proceeding to collect his debt the plaintiff acquired no lien, nor was he in a position of a creditor entitled to allege that. Husson’s mortgage, from not being filed when he commenced the proceeding, was absolutely void as against him. If, however, he was in a situation to raise the question of the invalidity of Husson’s mortgage as against him, on the
There is, however, another reason why the plaintiff is not entitled to have the proceeds of the sale applied in payment of his judgment in preference to Husson’s mortgage. On the face of his complaint it had been shown that the transfer to Lambrecht was made subject to Husson’s mortgage, the validity of which was nowhere questioned, Husson not being a party." The court must either have given a judgment simply setting aside the conveyance, or do, what it undoubtedly possessed the power of doing, set it aside and take the property and dispose of it equitably. Accordingly, a judgment was given declaring the conveyance to Lambrecht to be void, -and ordering the appointment of a receiver to take and sell the property, subject to the incumbrances upon it at the time of the transfer—Husson’s mortgage being the only lien. In this judgment the plaintiff acquiesced and has never appealed from it. If'he had appealed he could not have altered it, as Husson, the mortgagee, was not a party. .Hus-son’s right to be paid his mortgage is, therefore, res udjudicata.
There is yet another reason for postponing the payment of the plaintiff’s judgment to that of the mortgage of Husson. The order of the court was to sell the property, subject to the incumbrances, including, this mortgage, and if Husson had not consented it could not have been sold in any other way. To have effected a sale of it, subject to incumbrances, would have required it to have been sold in bulk. Before the sale the plaintiff, Husson and others interested, fixed a price at which it was to be sold in bulk, and if so sold it was agreed that the Husson mortgage was to remain; but if the sale was in parcels, and the property scattered, the mortgage was to be first paid from the proceeds of sales. An ineffectual attempt was made to sell in bulk, there being no
The judgment should be affirmed.
Affirmed: '