103 N.Y. 115 | NY | 1886
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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *118
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *119 Upon this appeal the expectation of success seems to rest chiefly upon a supposed distinction between the clause in question and a chattel mortgage. It is upon the appellant's points styled a "lien clause," and the contention is that as it does not purport "to pass the title to the property, it cannot be said to be a mortgage, or a conveyance intended to operate as a mortgage," within the provisions of law in regard to the filing of chattel mortgages (Laws of 1833, chap. 279; Laws of 1879, chap. 418), or those which relate to fraudulent conveyances or transfers of personal property. (2 R.S., tit. 2, part 2, chap 7, p. 136, § 5.)
No question upon such supposed distinction appears to have been presented upon the trial, but on the contrary the complaint asks that payment "be made out of the mortgaged chattels; that the assignee be enjoined from disposing of said mortgaged chattels," and that "a receiver of said mortgaged chattels and the proceeds thereof be appointed." So, while it is impossible to tell from the record how much of the complaint *122
is admitted or what is denied, it is apparent that such was the understanding of the defendants, for the instrument is repeatedly referred to as "a chattel mortgage lease," and the goods as "mortgaged goods," and want of filing of the instrument and the agreement made at the time of its execution, that notwithstanding its provisions the lessees might continue to deal with the property in all respects "as if no mortgage was in existence," are set up as affirmative defenses. In the same language the trial judge deals with the case in his findings, and there was no request for any different finding or interpretation. But I do not think it is material to inquire how the paper may be characterized. Its form was, no doubt, devised in order to give by contract to the landlord of the demised premises that priority for the collection of rent which once existed by statute, but which the legislature had at the time in question abolished (Laws of 1846, chap. 274), thus leaving the landlord to take his place with other creditors, and a debt for rent to be enforced like other obligations. What then is the effect of the contract as expressed by the clause lying at the bottom of this controversy. It cannot be doubted that it was, as between the lessor and lessee, good as a contract not only as to property in existence and on the demised premises when the lease was executed, but as to that afterward acquired and brought on to them. A similar agreement was examined in McCaffrey v. Wooden (
Here the question is in equity, and is raised by the lessor against an assignee for the benefit of the creditors of the lessee. *123
In the cases cited the lessor had obtained possession of the things in dispute, and the first decision turned upon the validity of the agreement as to non-existent property; the other upon the priority of the plaintiff. So in Hale v. Omaha Nat.Bk. (
We cannot agree, however, in that contention: (1) The defendant represents creditors, and may treat as void all agreements made in fraud of their rights. (Laws of 1858, chap. 314.) He has greater power for this purpose than the creditor himself. The creditor can assert no right until by judgment and execution he has a lien, or a right to a lien, upon the specific property; but in favor of an assignee for his benefit, the legislature have substituted a statutory right in place of these conditions. (Southard v. Benner,
But the learned counsel for the appellant argues that there was no evidence to sustain the eleventh finding (supra), viz.: that showing a fraudulent arrangement at the time of the execution of the lease, and, therefore, that the provisions of the act of 1858, as to the powers of assignees, are not brought into operation. Conceding it to be valid between the parties, as we have done, we think it fraudulent upon its face as to creditors, and, therefore, void as to the defendant, their assignee. The lessee was a retail merchant. The lease in terms permits him to sell his stock in the regular course of business, and relieves so much of it from the lien. He in fact carried on the business *125
the same after the lease as before. The stock of goods fluctuated, and the plaintiff had notice that it would do so when he gave the lease; he also knew that the defendant was to, and did continue the business in that way. There was no restraint upon him in regard to it, or the disposition of the money when the goods were sold. We think the finding was fully justified byEdgell v. Hart (
The argument for the appellant suggests no ground on which a court of equity can interfere in his favor.
The judgment should, therefore, be affirmed.
All concur, except MILLER, J., absent.
Judgment affirmed.