69 N.Y.S. 839 | N.Y. App. Div. | 1901
This action has been twice tried and is here for the second time on appeal. On the first trial the court held that the judgment by confession was void, and directed a verdict for the plaintiff for the value of the property as assessed by the jury. This court, on appeal, reversed the judgment for the plaintiff and granted a new
As against this judgment creditor, the chattel mortgage held by the plaintiff was absolutely void, there -never having been any actual or continued change of possession of the mortgaged property nor any filing of the mortgage in the town where the mortgagor resided. (3 R. S. [9th ed.] 2013, §§ 1, 2.)
The plaintiff sought to avoid the consequences of the statute by ■claiming to have taken possession of the mortgaged property three •days before the levy was made by the sheriff. Assuming that if he had taken possession of the property it would have been beyond the power of the defendant to levy upon it, it clearly appears irom the plaintiff’s evidence that no actual'possession was taken by him. At the time of the levy the cattle were on the farm of the mortgagor in the possession of his tenant, who had three days- before pointed them out to the plaintiff’s attorney, who simply said that he took possession of them under the chattel mortgage. This was .insufficient. Mere words and inspection cannot effect a change of possession. There must be an actual possession by the mortgagee; ¡a possession in fact. .
The judgment by confession established the relation of creditor and debtor between the parties to the record and the amount of the indebtedness, and could only be impeached for fraud or collusion in its procurement. (Candee v. Lord, 2 N. Y. 269 ; Acker v. Leland, 109 id. 5 ; Carpenter v. Osborn, 102 id. 552.) There was but little, if any, evidence on this question, and none to be submitted to the jury. There was none from which they could reasonably infer that the judgment was fraudulently or eollusively procured. The testimony of the judgment debtor, who was a witness for the plaintiff, instead of impeaching the judgment, showed that it was confessed on a note given on November 26, 1894, to his wife for full and fair consideration for money theretofore borrowed of her and for indebtedness for rent.
The complaint was properly dismissed by the court, and the judgment should be affirmed, with costs.
Judgment unanimously affirmed, with costs.
