44 Barb. 258 | N.Y. Sup. Ct. | 1865
The property in question which was taken by the defendant, on the execution, and to
The plaintiff claims title by virtue of a chattel mortgage executed to her, by Cheney, the judgment debtor, against whom the execution was issued. The clause in the mortgage constituting the sale and transfer is in these words: “ I do hereby sell, transfer and assign to the said Esther M. He well the property described in the annexed schedule, marked A, except such articles as are by law exempt from levy and sale under execution.” It is shown by the evidence that this shedule A, which was annexed to the mortgage* and formed part of it, contained all the household furniture, and all the personal property of which the mortgagor was possessed, and embraced the articles in question.
The defendant’s counsel, amongst other things, asked' for a nonsuit, in due time, on the ground that the mortgage was so uncertain in its description of the property attempted to be sold to the plaintiff that it was void and conveyed no title. He also asked the court to direct the jury to find a verdict for the defendant, on substantially the same ground. Both requests were denied and exceptions taken.
A chattel mortgage is an executed sale of property, which vests the title in the mortgagee until the terms upon which it may be defeated are complied with. And like all other sales of property, if the thing or things designed to be sold be not pointed out, described or identified, in some way, so that they can be distinguished and taken by the purchaser, without any further act, on the part of the seller, no title vests in such purchaser. The general rule is that the sale is not completed, so as to pass the property, so long as any thing remains to be done to identify it, or discriminate it from other things. (1 Parsons on Cont. 441. Chitty on Cont. 376.) The rule is well stated by Comstock, J. who delivered the opinion of the court in Kimberly v. Patchin,
But it has been held that a mortgage of all the property of a particular description in a certain store, is sufficiently
And in respect to property sold or mortgaged by a schedule, with an exception similar to that contained in the mortgage in question, I am of the opinion that it is sufficiently definite and certain as to all the articles enumerated in the schedule, which necessarily or presumptively do not fall within the exception, to transfer the title to the purchaser or mortgagee. There are many articles of personal property in the schedule attached to the mortgage and forming a part of it, which presumptively, and in ordinary cases, clearly, would not come within the category of property exempt from levy and sale under execution. And this is obviously the case in respect to several of the articles taken by the defendant upon the execution. It is held in the case last above cited * that a chattel mortgage may be good to transfer the title to a portion of the property contained in it, although void as to other portions it assumes to transfer: The- mortgage in question was not therefore void, but valid at least as to a portion of the property in question, and the request to non-suit and to direct a verdict on the ground specified, was properly denied.
The defendant's counsel also made a similar request for a nonsuit and direction to the jury to find a verdict on the ground that a copy of the mortgage had not been filed in successive years previous to the levy, within the time prescribed by statute. The mortgage was first filed February 23, 1858. A copy was filed with statement February 17, 1859; another copy and statement was filed January 30, 1860.. The next copy was filed with statement January 12, 1861. The.next was filed January 8, 1862, and the last was filed January 9, 1863.
The statute provides that every mortgage filed in pursuance thereof, shall cease to he valid as against the creditors of the person making the same, after the expiration of one year from the filing thereof, unless within thirty days
I do not see but this is so. It is true that that was the case of the original mortgage refiled after the expiration of the time prescribed by statute. But the statute makes the filing of a copy just as effectual as the filing of the original. And if we are at liberty to depart at all from the provision of the statute, it can make no difference whether the filing is earlier or later than the prescribed time. I dissented from the majority of the court in the case referred to, and am still entirely unable to see how it is.that when the statute says in plain terms that unless a certain thing is done within a certain time, the mortgage shall cease to be valid, as
There is another question, however, upon which I think the learned judge at the circuit fell into an error; that is in regard to the certificate indorsed upon or accompanying the copy of the mortgage.- The statute requires it to be “a statement exhibiting the interest of the mortgagee in the property thereby claimed by him by virtue thereof.” That is by virtue of the mortgage. The first three copies annually filed, had the proper statement, signed by the mortgagee, filed with them. But last the two were not accompanied by any statement of the mortgagee whatever. All that appears is a certificate indorsed thereon, signed by the mortgagor, specifying that the same amount mentioned in the preceding year was due. The statute obviously contemplates a statement made by the mortgagee. It must exhibit the interest claimed by him 'in the property by virtue of the mortgage. A mere statement of the amount due to the mortgagee, made by the mortgagor or any third person, without any authority from such mortgagee, as these appear to have been, will not answer the requirement of the statute. It is the mere statement of a third person, and affords no evidence whatever of the interest claimed by the mortgagee in the property originally mortgaged, by virtue of the mortgage. It will hardly do to say that any person may go and file a copy of a mortgage and make this statement, and thus protect the property against the claim's of creditors. We might as well dispense with the statute altogether. And the mortgagor who is in possession of the property, and interested to keep off creditors, is, I think, the last person who should be allowed to file the copy and make the statement. It may be doubted, I think, whether merely stating the amount due from the mortgagor to the mortgagee, is enough, even when made by the proper party. 'But it is unnecessary to pass
My conclusion therefore is, that the mortgage had ceased to be valid, as against the execution in the defendant’s hands, long before the levy was made, and was then invalid for the want of a proper statement. The objection to the mortgage on this ground was well taken, and should have been sustained.
A new trial must therefore he granted, with costs to abide the event. Upon the point in the opinion, that the mortgage is valid as to all the articles enumerated in the schedule attached to and forming part of the mortgage, which would not necessarily or presumptively fall within the exception of exempt property, my brethren .express no opinion. Consequently that point in the case is not decided. In all other respects the opinion is concurred in.
Johnson, E. Darwin Smith, and Jas. 0. Smith, Justices.]