•saHNOixvxs V 
 
 C.I 
 
Cornell University Library 
 KFN5266.5.S64 
 
 A treatise upon the law of chattel morti 
 
 3 1924 021 908 029 
 
Cornell University 
 Library 
 
 The original of this book is in 
 the Cornell University Library. 
 
 There are no known copyright restrictions in 
 the United States on the use of the text. 
 
 http://www.archive.org/details/cu31924021908029 
 
A TREATISE 
 
 Ul'ON THE 
 
 LAW OF CHATTEL MORTGAGES, 
 
 STATE OF NEW YORK. 
 
 BY 
 
 Dix W. Smith, LL. B., 
 
 Of the Elmira Bar. 
 
 ALBANY, N. Y.: 
 
 MATTHEW BENDER, LAW BOOK PUBLISHER. 
 1889. 
 
Entered according to Act of Congress, in the year one thousand eight hundred and 
 eighty-nine, 
 
 By MATTHEW BENDER, 
 
 In the office of the Librarian of Congress, at Washington. 
 
 ELECTROTYPED AND PRINTED BT 
 WEED, PABSONS AND COMPANT, 
 ALBANY, N. T. 
 
PREFACE. 
 
 The subject of Chattel Mortgages occupies a prominent and 
 important position in the jurisprudence of this State; there being 
 more than one thousand reported cases involving this subject. 
 
 The aim of the writer has been to collate these cases, and lay 
 before the student the principles involved in the more important 
 of them ; and to give the busy practitioner a book of ready refer- 
 ence to the law of chattel mortgages in this State. 
 
 It has not been thought best to go outside of the State for au- 
 thorities, as such authorities are often in conflict with our own. 
 
 It is the hope of the author that this treatise will meet with the 
 approval of the profession, and lighten the research of its busy 
 members. 
 
 Elmira, N. Y., April i, i88g. 
 
TABLE OF CONTENTS. 
 
 CHAPTER I. 
 
 THE INSTRUMENT. 
 
 Page. 
 
 1. Nature AND Definition i 
 
 2. Form AND Requisites 3 
 
 3. The Parties 5 
 
 4. The Subject Matter 7 
 
 5. Description of Property 10 
 
 6. Execution AND Delivery... 12 
 
 CHAPTER n. 
 
 ON THE FILING AND REFILING OF CHATTEL 
 MORTGAGES. 
 
 1. Where Filed 14 
 
 2. How Filed 19 
 
 3. Effect of Omission to File 20 
 
 4. Where Refiled 27 
 
 5. How Refiled 27 
 
 6. When Refiled 30 
 
 7. Effect of OmissiCJn to Refile 32 
 
vi TABLE OF CONTENTS. 
 
 CHAPTER III. 
 
 THE VALIDITY OF CHATTEL MORTGAGES. 
 
 Page 
 
 1. Between the Parties 34 
 
 2. The Controlling Law as to Validity 36 
 
 3. Change of Possession 39 
 
 4. What Interests may be Mortgaged 40 
 
 5. Agreements which Render the Mortgage Void 42 
 
 6. Agreements which do not Invalidate the Mortgage. 45 
 
 7. Of Mortgages upon Fixtures 54 
 
 8. How, and by whom the Validity may be Contested.. 59 
 
 CHAPTER IV. 
 
 OF THE DISPOSITION AND SALE OF THE MORTGAGED 
 PROPERTY. 
 
 1. Under Execution 62 
 
 2. By the Mortgagor 66 
 
 3. By the Mortgagor's Agent 67 
 
 4. By the Mortgagee 69 
 
 CHAPTER V. 
 
 ASSIGNMENT. 
 
 1. Assignment , 78 
 
 2. Payment 80 
 
 3. Satisfaction 82 
 
 4. Redemption 1 83 
 
TABLE OF CONTENTS. vii 
 
 CHAPTER VI. 
 
 OF MORTGAGES ON SHIPS AND VESSELS. 
 
 Page. 
 
 1. Filing and Recording 85 
 
 2. Of Liens for Repairs and Supplies 90 
 
 3. Of Validity 99 
 
 4. Of Priority between Liens and Mortgages loi 
 
 5. Of Bottomry and Respondentia 102-106 
 
TABLE OF CASES. 
 
 ■^» PAGE. 
 
 Ackley v. Finch 7 Cow. 290 4 
 
 Act of Congress, Feb. 18, 1793 Section i 86 
 
 .<Etna Ins. Co. V. Aldrich 26 N. Y. 96 25 
 
 Albany Law Journal 3, page 480 104 
 
 Aldrich v. ^tna Co 8 Wall. 491 16 
 
 Alonson Sumner (The) 28 Fed. Rep. 670 94 
 
 Allen V. Newberry 21 How. 244 99 
 
 Anderson v. Hann 3 Weekly Dig. 367 43 
 
 Anderson V. Hunn 5 Hun, 79 60 
 
 Anderson V. Nicholas 5 Bosw. 130 68 
 
 Andrew V. Newcomb 32 N. Y. 417 41 
 
 Atlantic (The Brig) i Newb. 516 106 
 
 B. 
 
 Baldwin v. The Bradish Johnson 3 Woods. 582 loi 
 
 Ball V. Slafter 26 Hun, 355 15 
 
 Ballou V. Cunningham 4 Lans. 74 69 
 
 Bakes V. Dobin 67 Barb. 433 46 
 
 Bank of Rochester v. Jones 4 N. Y. 498 4 
 
 Bank of Utica v. Finch 3 Barb. Ch. 293 9 
 
 Banne v. Drew 4 Denio, 287 75 
 
 Bardwell v. Roberts 66 Barb. 433 4 
 
 Barrow v. Paxton ... 5 Johns. 258 3 
 
 Battle V. The Rochester City Bank.. . 3 Corast. 88 71 
 
 , Baxter v. Gilbert 12 Abb. Pr. 97 79 
 
 Beers v. Waterbury 8 Bosw. 396 28 
 
 Best V. Staple 61 N. Y. 71 23 
 
 Betsinger v. Schuyler 46 Hun, 353 , . i 
 
 Bishop V. Cook . , 13 Barb. 326 19 
 
 Bissell V. Pearce 28 N. Y. 252 24 
 
 Bogart V. The John Jay 17 How. (U. S.) 399 100 
 
 Booth V. Kehoe 71 N. Y. 341 23 
 
 Bouvier's Law Diet page 471 105 
 
 Brackett v. Harvey 91 N. Y. 214 4 
 
 Bragelman v. Daue 69 N. Y. 69 2 
 
TABLE OF CASES. 
 
 Braynard v. Hoppock 32 N. Y. 572 103 
 
 Breese v. Bauge 2 E. D. Smith, 474 23 
 
 Briggs V. Oliver 68 N. T. 336 72 
 
 Brinkerhoff V. Brown 6 Johns. Ch. 139 22 
 
 Brookman v. Hamill 43 N. Y. 544 99 
 
 Brower v. Peabody 3 Kern. 121 68 
 
 Brown v. Bennet 8 Johns. 96 3 
 
 Brown v. Clapp 8 Bosw. 324 13 
 
 Brown v. Gutherie 1 10 N. Y. 442 9 
 
 Brown v. Keifer 5 Weekly Dig. 485 9 
 
 Brown v. Rich 40 Barb. 28 65 
 
 Brownell v. Hawkins 4 Barb. 491 6 
 
 BrunswickCollenderCo.v. Stevenson 21 N. Y. St. Rep. 862... 8 
 
 Bryan V. Smith 13 Daly, 332 72 
 
 Bunacleugh v. Poolman 3 Daly, 236 4 
 
 Bush V. Lathrop 22 N. Y. 535 80 
 
 Butler V. Miller i N. Y. 496 54 
 
 Button V. Rathbone, Sard & Co 43 Hun, 148 22 
 
 C. 
 
 Camp V. Camp 2 Hill, 628 39 
 
 Campbell V. Birch 60 N. Y. 215 .*.. 78 
 
 Campbell Printing Press Co. v. Da- 
 mon 48 Hun, 509 22 
 
 Caring v. Richmond 28 Hun, 25 10 
 
 Carpenter v. Blote . . i E. D. Smith, 491 9 
 
 Carpenter v. Longan 16 Wall. 271 54 
 
 Carpenter v. Simmons 28 How. 12 4 
 
 Cary v. White 52 N. Y. 138 33 
 
 Case v. Boughton 11 Wend. 106 73 
 
 Cavan v. Kelly 3 Alb. Law Jour. 373 .. . 61 
 
 Ceas V. Bramley 18 Hun, 187 4 
 
 Chadwick V. Lamb 29 How. 518 63 
 
 Chandler V. Bunn Lalor's Sup. to Hill & 
 
 Denio, 167 17 
 
 Chapin v. Shafer 49 N. Y. 407 6 
 
 Chapman v. Jenkins 31 Barb. 164 81 
 
 Charter v. Stevens 3 Denio, 33 70 
 
 Chrisfield v. Bogardus 18 Abb. New Cas. 334. . . 24 
 
 City Bank of Rochester v. Westbury. 16 Hun, 458 42 
 
 Clark V. Gilbert 14 Weekly Dig. 428 40 
 
 Clark V. Griffith 2 Bosw. 558 87 
 
 Coe V. Cassady , 72 N, Y. 133 3 
 
 Colebrooke on Collateral Securities. . page 198 54 
 
 Conderman v. Smith 41 Barb. 404 8 
 
TABLE OF CASES. 
 
 PAGE. 
 
 Conkling v. Shelly 28 N. Y. 362 10 
 
 Constancia (The) 4 Notes of Cases, 285 .. . 105 
 
 Corning v. Askley 21 N. Y. St. Rep. 703. . 53 
 
 Craig V. Tappin 2 Sandf. Ch. 78 9 
 
 Cressey v. Sabre 17 Hun, 122 9 
 
 Crandall V. Brown i8 Hun, 461 39 
 
 Crawford v. Collons 45 Barb. 269 98 
 
 Culver V. Sisson 3 N. Y. 264 3 
 
 Cunningham v. Hall i Cliff. 46 95 
 
 Cutler V. The James Goold Co 43 Hun, 516 70 
 
 Daniel on Negotiable Instruments. . . page 601 79 
 
 Davenport v. McChesney 86 N. Y. 242 71 
 
 Decker V. Boice 83 N. Y. 215 80 
 
 Delaware v. Ensign 12 Barb. 85 60 
 
 DeSmet(The) 10 Fed. Rep. 483 loi 
 
 Despard v. Walbridge 1 5 N. Y. 374 2 
 
 Dikeman v. Puckhafer i Abb. (N. S.) 32 5 
 
 Dillingham v. Bolt 37 N. Y. 197 26 
 
 Divvor V. McLauchlin 2 Wend. 596 67 
 
 Dix V. Van Wyck 2 Hill, 522 ,61 
 
 Dodge V- Potter 18 Barb. 201 10 
 
 Dolson V. Saxton 5 Weekly Dig. 1 26 44 
 
 Dresser v. United F. Ins. Co 45 Hun, 302 50 
 
 Dudley v. Hawley 39 N. Y. 441 68 
 
 Duflfue V. Bangs 43 Hun, 52 2 
 
 Dunham v. Whitehead 21 N. Y. 131 45 
 
 Dunning v. Stearns 9 Barb. 630 10 
 
 Dutcher v. Swartwood 15 Hun, 34 40 
 
 E. 
 
 Edgell V. Hart 9 N. Y. 216 4 
 
 Edgerly v. Bush 81 N. Y. 199 25 
 
 Edith (The) 94 U. S. 520 95 
 
 Edwards V. Elliott 21 Wall. 532 95 
 
 Edminston v. Biucker 40 Hun, 256 70 
 
 Elder V. Rouse 15 Wend. 218 70 
 
 EIlaB.(The) 26 Fed. Rep. 1 1 1 89 
 
 Ellsworth V. Phelps 30 Hun, 646 52 
 
 Elyv. Carnl^y 19 N. Y. 498 20 
 
 Emily Souder (The) 17 Wall. 666 loi 
 
 Emmons v. Wheeler 3 Hun, 545 98 
 
 Everett v. Coffin 6 Wend. 609. 68 
 
xii TABLE OF CASES. 
 
 ^» PAGE. 
 
 Fairbanks v. Bloomfield 5 Duer, 434 3 
 
 Farmers' Loan & Trust Co. v. Hen- 
 
 drickson 25 Barb. 484 21 
 
 Farmers' Loan & Trust Co. v. Long 
 
 Beach Improvement Co 27 Hun, 89 7 
 
 Farrington v. Frankfort Bank 24 Barb. 554 33 
 
 Fellows V. Van Hyring 23 How. 230 34 
 
 Ferguson v. Union Furnace Co 9 Wend. 345 4 
 
 Fiero on Special Actions page 409 72 
 
 Fitch V. Humphrey i Denio, 163 29 
 
 Folger V. Weber 16 Hun, 515 16 
 
 Ford V.Cobb 20 N. Y. 344 55 
 
 Ford V. Ransom 8 Abb. (N. S.) 416 73 
 
 Ford V. Williams 24 N. Y. 365 39 
 
 Fox V. Burns 12 Barb. 677 20 
 
 Fox V. M oyer 54 N. Y. 129 22 
 
 Fralick V. Betts 13 Hun, 632 99 
 
 Freeman v. Auld 44 N. Y. 57 78 
 
 Frost V. Mott 34 N. Y. 255 39 
 
 Frost V. Warren 42 N. Y. 204 5 
 
 Frost V. Willard 9 Barb. 440 45 
 
 Fuller V. Acker i Hill, 173 13 
 
 G. 
 
 Galen v. Brown 22 Hun, 40 12 
 
 Gardner V. McEwen 19 N, Y. 317 4 
 
 Gardiner V. Finly 19 Barb. 317 47 
 
 Gibson v. Warden 14 Wall. 244 4 
 
 Gildersleeve V. Landon 73 N. Y. 609 21 
 
 Godard V. Gould. 14 Barb. 662 57 
 
 Gould V. Marsh i Hun, 566 78 
 
 Goulet V. Asseler 22 N. Y. 228 62 
 
 Graser v. Stellwagen 25 N. Y. 31 5 6 
 
 Green v. Armstrong i Denio, 550 8 
 
 Green v. Green 9 Cowen, 46 71 
 
 Gregory v. Thomas 20 Wend. 17 32 
 
 Griffin V. Allen (not reported), cited in 
 
 Clinton's Dig , 56 
 
 Griswold v. Sheldon 4 N. Y. 581 43 
 
 H. 
 
 Hale V. Omaha Nat. Bank 49 N. Y. 634. . . .^ 8 
 
 Hale V. Sweet. 40 N. Y. 103 64 
 
 Hall V. Ditson 55 How. 19 70 
 
 Hall V. Samson 19 How. 481 62 
 
TABLE OF CASES. xiii 
 
 PAGE. 
 
 Halstead V. Swartz 46 How. 289 71 
 
 Hamill v. Gillespie 48 N. Y. 556 63 
 
 Hamilton V. Austin 36 Hun, 138 9 
 
 Hanford V. Artcher 4 Hill, 271 39 
 
 Hangen v. Hachmeister 53 N. Y. Supr. Ct. 533. . . 61 
 
 Harmon on Chattel Mortgages page 44 50 
 
 Hart V. Sheldon 34 Hun, 38 55 
 
 Hart V. Ten Eyck 2 Johns. Ch. 62 70 
 
 Hartley v. Tatham i Keyes, 222 80 
 
 Hathaway v. Brayman 42 N. Y. 322 64 
 
 Hathaway v. Howell 54 N. Y. 103 19 
 
 Hauselt v. Harrison 105 U. S. 401 40 
 
 Hawkins v. Giles 45 Hun, 318 25 
 
 Hawkins V. Kelly i Abb. (N. S.) 32 79 
 
 Hayman v. Jones 7 Hun, 238 21 
 
 Haynes V. Hart 42 Barb. 58 71 
 
 Hendricks V. Robinson 2 Johns. Ch. 296 22 
 
 Hersee v. Porter 100 N. Y. 403 65 
 
 Heye v. Bolles 33 How. 277 22 
 
 Hicks V. Williams 17 Barb. 523 16 
 
 Hill V. Beebe 13 N. Y. 556 54 
 
 Hills V. Miller 3 Paige, 254 12 
 
 Hinman v. Judson 12 Barb. 629 84 
 
 Hodges V. Tenn. Marine & Fire Ins. Co. 8 N. Y. 41 6 2 
 
 Horton v. Davis 26 N. Y. 495 34 
 
 Hotchkiss V. McVikar 12 Johns. 407 22 
 
 Howland v. Willett 3 Sandf. 608 ... 5 
 
 Hoyt V. Thompson's Exr 19 N. Y. 224 36 
 
 Hull V. Carnley 11 N. Y. 501 62 
 
 Husted V. Ingraham 75 N. Y. 251 59 
 
 J. 
 
 Jackson V. Kasseall 30 Hun, 231 ., 53 
 
 Jaqueth V. Merritt 29 Hun, 584 33 
 
 Jenkins v. Wheeler 2 Abb. App. Dec. 445. . . 100 
 
 Johflson V. Crofoot S3 Barb. 574 24 
 
 Johnson v. Hart 3 Johns. Cas. 322 78 
 
 Jones V. Graham 77 N. Y. 628 22 
 
 Jones V. Howell 3 Robt. 438 34 
 
 Jones on Chattel Mortgages i i 
 
 Jones on Chattel Mortgages 106 13 
 
 Jones on Chattel Mortgages 115 50 
 
 Josephine (The Steamboat) 39 N. Y. 19 100 
 
 Judson V. Easton 58 N. Y. 664. 2 
 
xiv TABLE OF CASES. 
 
 •K. PAGE. 
 
 Kane V. Cortesy loo N. Y. 132 81 
 
 Kellar V. Paine 107 N. Y. 83 16 
 
 Kelly V. Cushing. 48 Barb. 269 104 
 
 Kennedy v. The Nat. Union Bank ... 23 Hun, 497 6 
 
 Kent's Com (2) 621 68 
 
 Keir V. Dildine 6 N. Y. St. Rep. 163 52 
 
 King V. Greenway 71N. Y. 413 98 
 
 King V. Van Vleck.. 109 N. Y. 367 9 
 
 King V. Walbridge 48 Hun, 470 2 
 
 King V. Wilcomb 7 Barb. 263 9 
 
 Kinsey V. Bailey 9 Hun, 452 55 
 
 Knickerbocker Ins. Co. v. Hill 3 Hun, 577 61 
 
 Kribbs v. Alford 45 Hun, 588 41 
 
 L. 
 
 Lambert v. Leland 2 Sweeney, 216 2 
 
 Langdon v. Buell 9 Wend. 80 2 
 
 Lattawanna (The) 21 Wall. 558 95 
 
 Lattimer v. Wheeler 30 Barb. 480 33 
 
 Laws of 1833 chap. 279, sec. 2 17 
 
 Laws of 1864 chap. 412 27 
 
 Laws of 1871.: chap. ^^ 66 
 
 Laws of 1879 chap. 418 27 
 
 Laws of 1880 chap. 145 53 
 
 Laws of 1883 chap. 69 89 
 
 Leitch V. Hollister '. 4 N. Y. 21 1 45 
 
 Lewis V. Palmer 28 N. Y. 271 32 
 
 Livingston v. Sulzer 19 Hun, 380 58 
 
 Livorv. Orser 5 Duer, 501 64 
 
 Look V. Comstock 15 Wend. 241 40 
 
 Lord V. Yonkers Fuel Gas Co 99 N. Y. 551 7 
 
 Ludwig V. Kipp 20 Hun, 265 8 
 
 Lyman v. Bowe 66 How. 481 64 
 
 M. 
 
 Mabbett v. White 12 N. Y. 454 6 
 
 Mack V. Phelan 92 N. Y. 25 ; 15 
 
 Maguire v. Card 21 How. (U. S.) 248 99 
 
 Manchester v. Tibbetts 19 N. Y. St. Rep. 299. ... 6 
 
 Manning v. Monaghan 23 N. Y. 539 33 
 
 Manning v. Reilly 16 Weekly Dig. 428 43 
 
 Marsden V. Cornell 62 N. Y. 219 28 
 
 Marsden v. Vultee 8 Bosw. 129 43 
 
 Martin v. Rothschild 42 Hun, 410 15 
 
 Matthews v. Sniffen 10 Daly, 202 ; . . . 10 
 
TABLE OF CASES. xv 
 
 PAGE. 
 
 Mattison v. Baucus i N. Y. 295 64 
 
 Maxwell v. Inman 42 Hun, 267 4 
 
 McCaffrey v. Woodin 65 N. Y. 465 3 
 
 McCombs V. Becker 3 Hun, 342 48 
 
 McEntee v. Scott 2 Thompson & Cook, 284, 57 
 
 McFadden y. Van Buren 50 Hun, 361 
 
 McLaughlin v. Lester 4 N. Y. St. Rep. 852 59 
 
 McLaughlan V. Wright 3 Wend. 348 67 
 
 McRea v. Cent. Nat. Bank of Troy.. . . 66 N. Y. 495 55 
 
 Meech V. Patchin 14 N. Y. 72 15 
 
 Messelback v. Norman 46 Hun, 416. 13 
 
 Metropolitan Concert Co. v. Sperry. . 9 N. Y. St. Rep. 342.. ... 59 
 
 Michelson v. Fowler 27 Hun, 159 3 
 
 Mickles v. Dillaye 17 N. Y. 84 84 
 
 Millerv. Hart 32 Hun, 639 59 
 
 Miller V. Lockwood 32 N. Y. 293 9 
 
 Miner v. Judson 2 Hun, 441 2 
 
 Mittnacht V. Kelly 5 Abb. (N. S.) 442 11 
 
 Monnat V. Ibert 33 Barb. 24 9 
 
 Moore V. Simonds 100 U. S. 145 100 
 
 Morgan V. Shinn 15 Wall. 105 100 
 
 Morewood v. Enequist 23 How. 491 95 
 
 Moses V. Walker 2 Hilton, 536 2 
 
 Murdock V. Giflford 18 N. Y. 28 59 
 
 Murphy v. Moore 23 Hun, 95 44 
 
 Neer v. Oakley 18 N. Y. St. Rep. 374. . . 6 
 
 Neidig V. Eifler 18 Abb. 353 2 
 
 Nelson v. Drake 14 Hun, 465 7 
 
 Nelson V. Neil 15 Hun, 383 16 
 
 Nelson v. Yates 37 Hun, 52 98 
 
 Nestell V. Hewitt 19 Abb. New Cases, 287.. 41 
 
 Newell V. Warner 44 Barb. 258 31 
 
 Niagara (The) 31 Fed. Rep. 163 99 
 
 Niagara Co. Nat. Bank V. Lord 33 Hun, 577 15 
 
 Nichols V. Iremonger 3 Hun, 609 61 
 
 Nichols V. Lyons 14 N. Y. St. Rep. 549 .. . 3 
 
 Nichols V. Mase 25 Hun, 640 25 
 
 Nichols V. Mead 2 Lans. 222 i 
 
 Nixon V. Stanley 33 Hun, 248 31 
 
 North-Westernlns. Co. V. Ferward.. 36 N. Y. 139 104 
 
 Noyes V. Wyckoff 30 Hun, 466 2 
 
xvi TABLE OF CASES. 
 
 O. PAGE. 
 
 Ober V. Gallagher 93 U. S. 199 S4 
 
 Olcott V. Tioga R. R. Co 27N. Y. 546.. 70 
 
 Osborn v. Alexander 4° Hun, 328 28 
 
 Otis V. Sill 8 Barb. 102 8 
 
 P. 
 
 Pancoast v. The American Heating 
 
 and Power Co 66 How. 49 21 
 
 Parish v. Wheeler 22 N. Y, 494 73 
 
 Parker Mills v. Jacot 8 Bosw. 161 100 
 
 Parshall v. Eggert 54 N. Y. 18 i 
 
 Patchin v. Pierce 12 Wend. 61 7° 
 
 Patterson v. Gillies 64 Barb. 563 15 
 
 Peoples' Ferry Co. v. Beers 20 How. (U. S.) 402 95 
 
 Phoenix Mills v. Miller 4 N. Y. St. Rep. 787 54 
 
 Pioneer 30 Fed. Rep. 206 (U. S. 
 
 Dist. Ct. N. Y.) 96 
 
 Poole V. Kermit 59 N. Y. 554 100 
 
 Porter V. Parmley 52 N. Y. 185 i 
 
 Potter V. Cromwell 40 N. Y. 287 54 
 
 Potts V. Hart 99 N. Y. 168 40 
 
 I Powell on Mortgages 3 3 
 
 Powers V. Elias i N. Y. St. Rep. 248 64 
 
 Powers V. Freeman 2 Lans. 127 17 
 
 Pratt V. Stiles 17 How. 211 84 
 
 Preston v. Southwick 42 Hun, 293 5 
 
 Q. 
 
 Quinn & Nolan Brewing Co. v. Hart . . 48 Hun, 395 40 
 
 B. 
 
 Ray V. Birdseye SDenio, 619 33 
 
 3 Revised Statutes 978, chapter 73 86 
 
 Revised Statutes (U. S.) sees. 4192-4194 86 
 
 Revised Statutes (U. S.) sees. 4192, 4382 106 
 
 Revised Statutes (U. S.) sec. 5052 86 
 
 Reynolds v. Ellis 103 N. Y. 122 8 
 
 Rice V. Dewey 54 Barb. 455 47 
 
 Rich V. Milk 20 Barb. 616 63 
 
 Rickerson v. Raeder 4 Abb. Ct. App. Dec. 60. . 81 
 
 Riley v. Sexton 32 Hun, 249 11 
 
 Rinchey V. Stryker 26 How. 75 60 
 
 Ripley v. Larmouth 56 Barb. 21 ..■.-■. 9 
 
 Roach V. Chapman 22 How. 129 95 
 
 Roberts v. Chenango Mut. Ins. Co. . . 3 Hill, 501 12 
 
TABLE OF CASES. xvii 
 
 PAGE. 
 
 Roberts V. Jackson. i Wend. 478 12 
 
 Robertson v. United Ins. Co 2 Johns. Cas. 250 104 
 
 Rodman v. Hendricks i Sandf. 32 62 
 
 Rumsey's Practice (2) 99 5 
 
 Russellv. Butterfield 21 Wend. 300 72 
 
 Russell V. Winne 37 N. Y. 593 10 
 
 Rust V. Hauslet 46 Sup. Ct. Rep. 24 23 
 
 S. 
 
 Saltus V. Everett 20 Wend. 267 68 
 
 Sanger v. Eastwood 19 Wend. 514 21 
 
 Scott V. Delahunt 65 N. Y. 128 97 
 
 Schafer V. Reilly 50 N. Y. 61 80 
 
 Schoenrock v. Farley 49 Sup. Ct. Rep. 302 .... 3 
 
 Sheldon v. Edwards 35 N. Y. 279 -. 35 
 
 Sheppard v. Earles 13 Hun, 651 75 
 
 Shuart v. Taylor 7 How. 251 7 
 
 Shuler v. Boutwell 8 Weekly Dig. 442 26 
 
 Shutter v. Ward 16 Weekly Dig. 69 33 
 
 Siedenback V. Riley iiiN. Y. 560 39 
 
 Simis V. Harvey 21 N. Y. St. Rep. 955 
 
 Simis V. Hodge 50 Hun, 412 52 
 
 Simmons v. Osgoodby . . ; 16 Weekly Dig. 428. . . 40 
 
 Simon v. Schmidt 41 Hun, 318 83 
 
 Sisson V. Hibbard 75 N. Y. 542 55 
 
 Skinner V. Dayton 19 Johns. 513 7 
 
 Smith V. Acker 23 Wend. 653 21 
 
 Smith V. Beattie , 31 N. Y. 542 3 
 
 Smith V. Cooper 22 Hun, 11 29 
 
 Smith V. Kerr 3 N. Y. 144 7 
 
 Smith V. Post i Hun, 518 6 
 
 Smith V. Taber 46Hun,3i3 8 
 
 Southard v. Benner 72 N. Y. 428 ^ 15 
 
 Spencer v. Blackman 6 Wend. 167 68 
 
 Sperry v. Baldwin 46 Hun, 120 40 
 
 Steele v. Benham 84 N. Y. 634 31 
 
 StefRn V. Steffin 4 Civ. Pro. Rep. 187. . . 25 
 
 Stevens v. Watson 4 Abb. App. Cas. 302 ... 50 
 
 Steward v. Cole 43 Hun, 164 32 
 
 Stewart v. Beale 68 N. Y. 629 22 
 
 Stewart v. Piatt loi U. S. 731 17 
 
 Stewart v. Slater 6 Duer, 96 2 
 
 Stimson v. Wrigley. 86 N. Y. 332 40 
 
 Stockham v. Allard 2 Hun, 67 29 
 
 Stoddard v. Denison 38 How. 296 2 
 
*V'ii TABLE OF CASES. 
 
 Sullivan V. Miller. io6 N. Y. 641. "j", 
 
 Sullivan V. Toole 26 Hun, 203 . . . . „ 
 
 Swiftv.Hart. 12 Barb. 531 []] j^ 
 
 T. 
 
 Talman v. Hawkhurst 4 Duer, 221 g 
 
 Talraan V. Smith 39 Barb. 390 69 
 
 Tarbel V. Bradley 7 Abb. N. C. 286 ... .!.. 67 
 
 Taylor V. Walter. 34 How. 385 44 
 
 Thomas v. Bacon 34 Hun, 88 7 
 
 Thomas Fletcher (The) 24 Fed. Rep. 375 96 
 
 Thomas on Mortgages page 453 74 
 
 Thomas on Mortgages page 490 60 
 
 Thompson v. Blanchard 4 Comst. 303 .•..., 4 
 
 Thompson V. Van Vechten 27 N. Y. 568 32 
 
 Thurber V. Mintbum 62 How. 27 11 
 
 Tiflfany v. Warren 24 How. 293 33 
 
 Tifftv.Barton 4 Denio, 171 66 
 
 Tifftv. Horton 53 N. Y. 377 56 
 
 Tyler V. Strang 21 Barb. 198 3 
 
 Tyson V. Post 10BN.Y.221 58 
 
 IT. 
 UnadillaCThe) 8Ben.478 loi 
 
 6 
 
 V. 
 
 Van Bruntv. Appl^ate 44N. Y. 544 
 
 Van Doren V. Baity 11 Hun. 239 71 
 
 Van Heusen V. Radcliff 17 N. Y. 580 4 
 
 Van Hozer V. Cory 34 Barb. 12 40 
 
 2Ves. Jr.378 3 
 
 Voorhees V. McGinnis 48 N. Y. 282 54 
 
 W. 
 
 Wade V. Rusher 4 Bosw. 53? ^o 
 
 Waits Actions and Defenses (2)168 i 
 
 Wait's Actions and Defenses (2) i70- 
 
 Waif s Actions and Defenses (2) '95 
 
 Wait's Law and Pr (') '31 
 
 Wamerv.Jaffray ^N.Y.286 33 
 
 Weaverv.^rden J Duer, .07 9 
 
 Wescottv. Gunn ;7N.Y.423 ' 
 
 Wcstv. Craiy ^' 
 
xviii TABLE OF CASES. 
 
 PAGE. 
 
 Sullivan v. Miller. io6 N. Y. 641 22 
 
 Sullivan V. Toole 26 Hun, 203 47 
 
 Swift V. Hart 12 Barb. 531 20 
 
 T. 
 
 Talman v. Hawkhurst 4 Duer, 221 6 
 
 Talman v. Smith 39 Barb. 390 69 
 
 Tarbel v. Bradley 7 Abb. N. C. 286 67 
 
 Taylor v. Walter 34 How. 385 44 
 
 Thomas v. Bacon 34 Hun, 88 7 
 
 Thomas Fletcher (The) 24 Fed. Rep. 375 96 
 
 Thomas on Mortgages page 453 74 
 
 Thomas on Mortgages page 490 60 
 
 Thompson v. Blanchard 4 Comst. 303 .'.... 4 
 
 Thompson v. Van Vechten 27 N. Y. 568 32 
 
 Thurber V. Mintburn 62 How. 27 11 
 
 Tiffany v. Warren 24 How. 293 33 
 
 TifiEt v. Barton 4 Denio, 171 66 
 
 Tiflft V. Horton , S3 N. Y. 377 56 
 
 Tyler v. Strang 21 Barb. 198 3 
 
 Tyson V. Post 108 N. Y. 221 58 
 
 IT. 
 
 Unadilla (The) 8 Ben. 478 loi 
 
 V. 
 
 Van Brunt v. Applegate 44 N. Y. 544 6 
 
 Van Doren v. Baity 11 Hun, 239 71 
 
 Van Heusen V. Radcliflf 17 N. Y. 580 4 
 
 Van Hozer v. Cory 34 Barb. 12 40 
 
 2 Ves. Jr. 378 3 
 
 Voorhees v. McGinnis 48 N. Y. 282 54 
 
 W. 
 
 Wade V. Rusher 4 Bosw. 53;^ 60 
 
 Wait's Actions and Defenses (2) 168 5 
 
 Wait's Actions and Defenses (2) 170 10 
 
 Wait's Actions and Defenses (2) 195 lo 
 
 Wait's Law and Pr (i) 131 . 
 
 Walker V.Henry 85 N. Y. 134 28 
 
 Walker V. Snediker i Hofi. Ch. 145 9 
 
 Warner v. Jaflfray 96 N. Y. 248 38 
 
 Weaver v. Barden 49 N. Y. 286 33 
 
 Wescott v. Gunn 4 Duer, 107 q 
 
 West V. Crary 47 N. Y. 423 2 
 
TABLE OF CASES. 
 
 PAGE. 
 
 Whistler (The) 30 Fed. Rep. 199 (Dist. 
 
 Ct. E. D. ofN. Y.).. .. 97 
 
 White V. Cole 24Wend. u; 64 
 
 Whited V. Hamilton 15 Hun, 275 47 
 
 White's Bank v. Smith 7 Wall. 646 16 
 
 Williams V. Merle 11 Wend. 80 68 
 
 Williams V. Shelly 37 N. Y. 375 33 
 
 Williamson v. Brown 1 5 N, Y. 354 53 
 
 Williman V. Neher 20 Barb. 37 8 
 
 Willis V. Obrien 3 Jones & Spencer, 537. . 5 
 
 Wiiliston V. Jones 6 Duer, 507 43 
 
 Wilson V. Lawrence. 82 N. Y. 409 95 
 
 Wintermute v. Light 46 Barb. 282 11 
 
 Wood V. Lester 29 Barb. 145 11 
 
 Wood V. Lowry 17 Wend. 492 39 
 
 Wood V. Robinson 22 N. Y. 567 33 
 
 Woodbridge v. Nelson 6 Weekly Dig. 248 2 
 
 Wooster v. Sherwood 25 N. Y. 286 26 
 
 Wray v. Fedderke 11 Jones & Spencer, 338.. 23 
 
 T. 
 
 Yates V. Olmstead 56 N. Y. 632 46 
 
 Yenni V. McNamee 45N. Y. 615 25 
 
 Young V. The Orphans 2 Cliff. 29 95 
 
 Z. 
 
 Zimmer V. Wheeler 41 Hun, 638 21 
 
 "Zoeller v. Riley 100 N. Y. 103 34 
 
THE LAW 
 
 CHATTEL MORTGAGES 
 
 STATE OF NEW YORK. 
 
 CHAPTER I. 
 
 THE INSTRUMENT. 
 
 I. Nature and definition. IV. The subject matter. 
 
 II. Form and requisites. V. Description of property. 
 
 III. The parties. VI. Execution and delivery. 
 
 I. Nature and Definition. 
 
 A chattel mortgage has been defined as an instrument 
 whereby the owner of personal property transfers the title 
 to such property to another, as security for the payment of 
 a debt or obligation, subject to be defeated upon payment 
 of the debt or obligation. 
 
 Jones on Chattel Mortgages, i. 
 Porter v. Parmley, 52 N. Y. 185. 
 Betsinger v. Schuyler, 46 Hun, 353. 
 Nichols V. Mead, 2 Lans. 222. 
 Parshall v. Eggert, 54 N. Y. 18. 
 i' 
 
2 CHATTEL MORTGAGES. 
 
 The legal title is vested in the mortgagee, and becomes 
 absolute in law upon default. 
 
 Bragelman v. Daue, 69 N. Y. 69. 
 Neidig v. Eifler, 18 Abb. 353. 
 Stoddard v. Denison, 38 How. 296. 
 Moses V. Walker, 2 Hilt. 536. 
 Miner v. Judson, 2 Hun, 441. 
 Porter v. Parmley, 52 N. Y. 185. 
 Judson V. Easton, 58 N. Y. 664. 
 Noyes v. Wyckoff, 30 Hun, 466. 
 Langdon v. Buell, 9 Wend. 80. 
 Stewart v. Slater, 6 Duer, 96. 
 Lambert v. Leland, 2 Sweeny, 216. 
 Woodbridge v. Nelson, 6 Week. Dig. 248. 
 Parshall v. Eggert, 54 N. Y. 18. 
 Duffus V. Bangs, 43 Hun, 52. 
 King V. Walbridge, 48 Hun, 470. 
 
 Such legal title is extinguished by the payment of the 
 debt by the mortgagor, and such payment operates as a 
 waiver of the forfeiture. 
 
 West V. Crary, 47 N. Y. 423. 
 
 A chattel mortgage differs, in its structure and effect, en- 
 tirely from a mortgage upon real estate. A real estate 
 mortgage is only a lien, and conveys no title ; a chattel 
 mortgage transfers the title at once, subject to a defeasance 
 by the performance of the condition annexed. 
 
 Noyes v. Wyckoff, 30 Hun, 466. 
 
 A bill of sale of chattels, absolute in its terms, becomes a 
 mortgage upon proof by parol that it was made to secure a 
 debt. Such evidence being always admissible for this pur- 
 pose. 
 
 Despard v. Walbridge, 15 N. Y. 374. 
 
 Hodges V. Tenn. Marine & Fire Ins. Co., 8 N. Y. 416 
 
FORM AND REQUISITES. 3 
 
 Smith V. Beattie, 31 N. Y. 542. 
 Coe V. Cassidy, 72 N. Y. 133. 
 Michelson v. Fowler, 27 Hun, 159. 
 Tyler v. Strang, 21 Barb. 198. 
 Schoenrock v. Farley, 49 Supr. Ct. Rep. 302. 
 Stoddard v. Denison, 38 How. 296. 
 Nichols V. Lyons, 14 N. Y. St. Rep. 549; s. c, 47 
 Hun, 636, 
 
 The instrument, however, must contain an express 
 promise to pay or a distinct acknowledgment of an existing 
 debt, or an action will not lie. 
 
 Culver V. Sisson, 3 N. Y. 264. 
 
 Whether an instrument be in itself a chattel mortgage or 
 not, is a question of law. 
 
 Fairbanks v. Bloomfield, 5 Duer, 434. 
 
 A mortgage of goods is a pledge, and more ; for it is an 
 absolute pledge to become an absolute interest if not re- 
 deemed at the specified time. After the condition is for- 
 feited, the mortgagee has an absolute interest in the property, 
 whereas a pawnee has but a special property in the goods, 
 to detain them for his security. 
 
 Brown v. Bennet, 8 Johns. 96. Citing 
 
 Barrow v. Paxton, 5 Johns. 258. 
 
 2 Ves. Jr. 378. 
 
 I Powell on Mortgages, 3. , 
 
 II. Form and Requisites. 
 No particular form is necessary to constitute a chattel 
 mortgage. The simple statement that a creditor is to have 
 a lien, and that on default he may take possession and sell, 
 and apply the proceeds upon the hen is sufficient. 
 
 McCaffrey v. Woodin, 65 N. Y. 465. 
 
4 CHATTEL MORTGAGES. 
 
 Any form of words by which the title is transferred as se- 
 curity for a debt, or obligation of any kind, to be defeated 
 by the payment of the debt or the performance of the obli- 
 tion is sufficient. 
 
 Bunacleugh v. Poolman, 3 Daly, 236. 
 
 A chattel mortgage may be valid although made by parol. 
 But in such case delivery of the mortgaged property should 
 accompany the parol contract. 
 
 Bank of Rochester v. Jones, 4 N. Y. 498. 
 
 Ackley v. Finch, 7 Cow. 290. 
 
 Ferguson v. Union Furnace Co., 9 Wend. 345. 
 
 Bardwell v. Roberts, 66 Barb. 433. 
 
 Ceas V. Bramley, 18 Hun, 187. 
 
 A mortgage is void as to creditors, which provides for a 
 slubstitution of other property, to take the place of the prop- 
 erty described in the mortgage. 
 
 Carpenter v. Simmons, 28 How. 12. 
 Edgell V. Hart, 9 N. Y. 216. 
 Gardner v. McEwen, 19 N. Y. 123. 
 See Brackett v. Harvey, 91 N. Y. 214. 
 
 But it would be valid as to the property described in the 
 mortgage, although containing such a provision. 
 
 Gardner v. McEwen, supra. 
 
 Van Heusen v. Radcliff, 17 N. Y. 580. 
 
 A chattel mortgage need not be acknowledged in order to 
 require the town clerk to file it. 
 
 Maxwell v. Inman, 42 Hun, 267. 
 
 A chattel mortgage need not be under seal. 
 
 Gibson v. Warden, 14 Wall. 244. 
 I Wait's Law and Pr. 131. 
 Thompson v. Blanchard, 4 N. Y. 303. 
 
THE PARTIES. 5 
 
 If a chattel mortgage is acknowledged, proved, or certi- 
 fied in the manner prescribed by law for taking and certify- 
 ing the acknowledgment or proof of the conveyance of real 
 property, it thereupon becomes evidence, as if it was a con- 
 veyance of real property, and would not need to be proved 
 otherwise than such a conveyance. 
 
 2 Rumsey's Practice, 99, citing 
 Code Civ. Pro,, § 937. 
 
 A chattel mortgage should specify a time of payment, 
 otherwise it is due immediately. 
 
 Uikeman v. Puckhafer, i Abb. (N. S.) 32. 
 Howland v. Willett, 3 Sandf. 608. 
 
 If a greater sum than is really due is expressed in the 
 mortgage, that mere fact does not render it fraudulent in law. 
 
 Frost V. Warren, 42 N. Y. 204. 
 
 A chattel mortgage may be payable in instalments. 
 Willis V. O'Brien, 3 Jones & Spencer, 537. 
 
 If the instrument be in the form of a bill of sale, it will 
 be construed as a chattel mortgage, if that was the agree- 
 ment at the time of its execution. 
 
 Preston v. Southwick, 42 Hun, 293. 
 
 III. The Parties. 
 
 All persons who are legally competent to make a contract, 
 may also make a chattel mortgage. 
 
 2 Wait's Actions and Defenses. 168. 
 
6 CHATTEL MORTGAGES. 
 
 A man may make a valid chattel mortgage to his wife. 
 
 Smith V. Post, i Hun, 518; 
 
 Manchester v. Tibbetts, 19 N; Y. St. Rep. 299. 
 
 A married woman may give a chattel mortgage. 
 Talman v. HaWkhurst, 4 Dufer, 221. 
 
 A chattel mortgage may be executed by an agent, who is 
 authorized for that purpose ; his authority may be either 
 verbal or written, or by subsequent ratiilcation* 
 
 Brownell v. Hawkins, 4 Barb; 491. 
 
 An infant may make a chattel mortgage, and such mort- 
 gage will be voidable only and not void. 
 
 Hariyen v. Hachmeister, 49 Supf. Ct. Rep. 34. 
 Chapin v. Shafer, 49 N. Y. 407. 
 
 A member of a firm may make a chattel mortgage in the 
 firm name, covering the partnership property, to secure a firm 
 debt, without the knowledge or consent of his partners. 
 
 Stewart v. Slater, 6 Duer, 96. 
 
 Mablett v. White, 12 N. Y. 454. 
 
 Graser v. Stellwagen, 25 N. Y. 315. 
 
 Van Brunt v. Applegate, 44 N. Y. 544. 
 
 Kennedy V. The National Union Bank, 23 Hun, 49^. 
 
 Neer v. Oakley, 18 N. Y. St. Rep. 374. 
 
 One partner may make a valid mortgage of firm property 
 in his own name, if the mortgage be ratified by the other 
 partners. 
 
 Kennedy v. The National Union Bank, supra. 
 The acquiescence of the other partners whether given 
 
SUBJECT MATTER. 7 
 
 at the time or subsequently, will place its validity beyond 
 question. 
 
 Skinner v. Dayton, 19 Johns. 513. 
 
 Smith V. Ker, 3 N. Y. 144. 
 
 One tenant in common may make a valid chattel mort- 
 gage of his individual interest. 
 
 Shuart v. Taylor, 7 How. 251. 
 Thomas v. Bacon, 34 Hun, 88. 
 
 A joint stock company can make a valid chattel mortgage. 
 Nelson v. Drake, 14 Hun, 465. 
 
 Any corporation founded under the General Manufactur- 
 ing Law of 1848, can make a valid chattel mortgage. 
 
 Lord V. Yonkers Fuel Gas Co., 99 N. Y. 551. 
 
 Two or more persons may take one mortgage to secure 
 separate and distinct debts, and the fraudulent intent of one, 
 will not affect the rights of the other. The mortgage will 
 be void as to one, and good as to the other. 
 
 Under such form of mortgage each would hold the prop- 
 erty independently of the other, in proportion to the debt 
 secured* 
 
 Smith V. Post, supra. 
 
 IV. Subject Matter. 
 
 A chattel mortgage requires a subject in existence, and an 
 ownership and control in the mortgagor, and it can have no 
 validity where neither the property, nor the agent for its pro- 
 duction, is in the possession of the mortgagor. 
 
 Farmer's Loan & Trust Co. v. Long Beach Im- 
 provement Co., 27 Hun, 89. 
 
8 CHATTEL MORTGAGES. 
 
 A potential existence is sufficient, but the underlying 
 principle in all these cases is, that the right to the property 
 when it shall come into actual existence, is a present vested 
 right. 
 
 Betsinger v. Schuyler, 46 Hun, 352. 
 
 No principle known to the law will allow a valid chattel 
 mortgage on property not in existence, either actual or po- 
 tential. 
 
 Farmer's Loan & Trust Co. v. Long Beach Im- 
 provement Co,, supra. Citing 
 Gardner v. McEwan, 19 N. Y. 123. 
 Edgell V. Hart, 9 N. Y. 213. 
 Otis V. Sill, 8 Barb. 102. 
 Williman v. Neher, 20 Barb. 37. 
 Conderman v. Smith, 41 Barb. 404. 
 McCaffrey v. Woodin, 65 N. Y. 460 . 
 Brunswick Balke-Collender Go. v. Stevenson, 21 
 N. Y. St. Rep. 862. 
 
 But as between^he parties, a chattel mortgage upon prop- 
 erty to be acquired in the future is valid. 
 
 Ludwig V. Kipp, 20 Hun, 265. 
 
 Hale V. Omaha Nat. Bank, 49 N. Y. 634. 
 
 Reynolds v. Ellis, 103 N. Y. 122. 
 
 Crops to be raised are an exception to the general rule, 
 that title to property not in existence cannot be affected so 
 as to vest the title when it comes into being. In the case 
 of crops to be sown, it vests potentially from the time of 
 the executory bargain, and actually as soon as the subject 
 arises. 
 
 Green v. Armstrong, i Den. 550. 
 
 Smith V. Taber, 46 Hun, 316. 
 
 Betsinger v. Schuyler, 46 Hun, 352. 
 
 Growing grass may be mortgaged when owned by a tenant. 
 Green v. Armstrong, supra. 
 
SUBJECT MATTER. 9 
 
 Wool upon the sheep's back is the subject of chattel 
 mortgage. 
 
 Cressey v. Sabre, 17 Hun, r22. 
 
 The owiier of a dairy may make a valid mortgage of the 
 future products of such dairy, provided that at the time of 
 the execution of the mortgage, the mortgagor is the owner 
 of the dairy. 
 
 Betsinger v. Schuyler, 46 Hun, 353. 
 
 Nursery stock, consisting of trees, plants and shrubs, 
 planted by a tenant for the purpose of commerce, may be 
 mortgaged. 
 
 King V. Wilcomb, 7 Barb. 263. 
 
 Hamilton v. Austin, 36 Hun, 138. 
 
 Duffus V. Bangs, 43 Hun, 53. 
 
 A life insurance policy may be the subject of a chattel 
 mortgage. 
 
 King V. Van Vleck, 109 N. Y. 367. 
 
 May be given to secure future advances. 
 
 Wescott V. Gunn, 4 Duer, 107. 
 Fairbanks v. Bloomfield, 5 Duer, 440. 
 Bank of Utica v. Finch, 3 Barb. Ch. 293. 
 Monnat v. Ibert, 33 Barb. 24. 
 Ripley v. Larmouth, 56 Barb. 21. 
 Miller v. Lockwood, 32 N. Y. 293. 
 Brown v. Keifer, 5 Week. Dig. 485. 
 Carpenter v. Blote, i E. D. Smith, 491. 
 Craig V. Tappin, 2 Sandf. Ch. 78. 
 Walker v. Snediker, i Hoff. Ch. 145. 
 Brown v. Guthrie, no N. Y. 442. 
 
 A chattel mortgage may also be a continuing security to 
 cover both present and future indebtedness. 
 
 Brown v. Keifer, 71 N. Y. 610. 
 2 
 
10 CHATTEL MORTGAGES. 
 
 It may be stated generally that every kind of personal 
 property may be mortgaged, even if it is exempt from levy 
 and sale under execution. 
 
 2 Wait's Actions and Defenses, 170. 
 
 V. Description of Property. 
 
 The general rule as to description is, that any description 
 will suffice that will enable third persons to identify the 
 property, aided by inquiries and evidence. 
 
 Matthews v, Sniffen, 10 Daly, 202. 
 Conkling v. Shelley, 28 N. Y. 362. 
 Russell V. Winne, 37 N. Y. 593. 
 
 Oral evidence is competent to identify the articles de- 
 scribed in the mortgage. 
 
 Dodge V. Potter, 18 Barb. 201. 
 Caring v. Richmond, 28 Hun, 25. 
 
 Oral evidence may also be given to fix the quantity of 
 goods covered by the mortgage when the quantity is not 
 stated. 
 
 Dunning v. Stearns, 9 Barb. 630. 
 
 Where the description is erroneous, oral evidence may be 
 given to correct it. 
 
 Dodge V. Potter, supra. 
 
 A portion of a description which is false or inconsistent 
 with the rest of the description, may be rejected, if the re- 
 mainder of the description is sufficient to pass the property. 
 
 Dodge V. Potter, siipra. 
 
DESCRIPTION OF PROPERTY. ii 
 
 A chattel mortgage conveying "all personal property- 
 whatever," owned by the mortgagor, and also " all growing 
 crops of all kinds,'' is too indefinite, and cannot be said to 
 give notice of the lien to execution creditors. 
 
 Riley v. Sexton, 32 Hun, 249. Citing 
 Wood V. Lester, 29 Barb. 145. 
 Wintermute v. Light, 46 Barb. 282. 
 
 A general description covering all the goods in a store, 
 and stock in trade, was held sufficient. 
 
 Conkling v. Shelley, 28 N. Y. 362. 
 Russell V. Winne, supra. 
 
 A description covering the stock in trade, and merchan- 
 dise, and also, all " the increase and decrease thereof," was 
 held to be wholly void. 
 
 Mittnacht v. Kelly, 5 Abb. (N. S.) 442. 
 But see Brackett v. Harvey, 91 N. Y. 214. 
 
 A mortgage of real estate used as a sugar refinery, which 
 specified " and also all the machinery and effects in the said 
 sugar refinery," was held sufficient to cover the sugar in 
 stock on the premises. 
 
 Thurber v. Mintburn, 62 How. 27. 
 
 A mortgage of the " ashes in the ashery now in the pos- 
 session of" (the mortgagor) is a sufficient description. 
 
 Dunning Vi Stearns, 9 Barb. 630. 
 
 A general clause after a specific enumeration of articles 
 
 will extend the mortgage over the property embraced in the 
 
 general term, if the intent is clear from the language used 
 
 so to do. 
 
 Russell v. Winne, 37 N. Y. 593. 
 
12 CHATTEL MORTGAGES. 
 
 Where a schedule is annexed to a mortgage, and is refer- 
 red to in it, it becomes a part of the mortgage, and both 
 papers are to be construed together. 
 
 Edgell V. Hart, 9 N. Y. 215. Citing 
 
 Roberts v. Chenango Mut. Ins. Co., 3 Hill, 501. 
 
 Hills V. Miller, 3 Paige, 254. 
 
 Where there is a conflict between the mortgage and the 
 schedule, the former must govern. 
 
 Matthews v. Sniffen, 10 Daly, 202. 
 
 A lease in which the lessee mortgages all his property 
 upon the premises, to the mortgagor as security for the rent, 
 and which provided for an inventor^' of said property there- 
 after to be made and annexed, is valid although no inven- 
 tory was ever annexed thereto. 
 
 Van Hansen v. Radcliff, 17 N. Y. 580. 
 
 Where a mortgage was made of " 1 1 M feet of pine lum- 
 ber now in the shop of the mortgagor," there was only about 
 one-fifth of that quantity there at the time of the execution 
 of the mortgage, oral evidence was admitted to show that 
 the balance had been purchased by the mortgagor and not 
 yet delivered. 
 
 Galen v. Brown, 22 N. Y. 40. 
 
 VI. Execution and Delivery. 
 
 The question of delivery is one of fact for the jury, and 
 it is always competent to show that it was never delivered, 
 or that it was delivered as an escrow, or that the mortgagee 
 obtained possession of it by fraud. 
 
 Roberts v. Jackson, i Wend. 478. 
 
EXECUTION AND DELIVERY. 13 
 
 A delivery and acceptance are essential to constitute a 
 valid mortgage. Without these there is only an attempt to 
 make a mortgage. 
 
 Jones on Chattel Mortgages, 106. 
 
 There must be some act showing that the grantor intends 
 that it shall take effect. That act is delivery to the grantee, 
 actual or presumed. Merely to sign, seal and acknowl- 
 edge a writing, and then to keep it in one's possession con- 
 veys no title. 
 
 Messelback v. Norman, 46 Hun, 416. 
 
 The date recited in a chattel mortgage is on\y prima facie 
 evidence of the time of its execution, and the true date may 
 be shown by oral evidence. 
 
 Fuller V. Acker, i Hill, 173. 
 
 If a mortgage be made to several creditors, the refusal of 
 one to accept it, does -not impair the mortgage as to those 
 who have accepted it. 
 
 Brown v. Clapp, 8 Bosw. 324. 
 
 May be executed by an agent duly authorized for that 
 purpose. 
 
 Brownell v. Hawkins, 4 Barb. 491. 
 
14 CHATTEL MORTGAGES. 
 
 CHAPTER II. 
 
 ON THE FILING AND RE-FILING OF CHATTEL MORT- 
 GAGES. 
 
 I. Where filed. y. How rerfiled. 
 
 II. How filed. yi. When re-filed. 
 
 III. Effect of omission to file. VII. Effect of omission to re-file. 
 
 IV. Wliere re-filed. 
 
 I. Where Filed, 
 The statute of 1833, chapter 279, provides as follows: 
 Section i. " Every mortgage or conveyance intended to 
 operate as a mortgage, of goods and chattels hereafter made, 
 which shall not be accompanied by an immediate delivery 
 and be followed by an actual and continued change of pos- 
 session of the things niortgaged, shall be absolutely void as 
 against creditors of the mortgagor, and as against subse^ 
 quent purchasers and mortgagees in good faith, unless the 
 mortgage, or a true copy thereof, shall be filed as directed 
 in the succeeding section of this act." 
 
 § 2. " The instruments mentioned in the preceding sec- 
 tion, shall be filed in the several towns and cities of this 
 State where the mortgagor therein, if a residerit of this State, 
 shall reside at the time of the execution thereof ; and if not 
 a resident, then in the city or town where the property so 
 mortgaged shall be at the time of the execution of such in- 
 strument. In the city of New York, such instrument shall 
 be filed in the office of the register of said city. In the sev- 
 eral cities of this State, other than the city of New York, 
 and in the several towns of this State in which a county 
 clerk's office is kept, in such office ; and in each of the other 
 towns of this State, in the office of the town clerk thereof ; 
 and such register and clerks are hereby required to file all 
 
WHERE FILED. 15 
 
 such instruments aforesaid presented, to them respectively 
 for that purpose, and to endorse thereon the time of receiv- 
 ing the same, and shall deposit the same in their respective 
 offices, to be kept there for the inspection of all persons in- 
 terested." 
 
 The object of the statute making the filing of chattel 
 mortgages necessary to preserve the lien as to creditors, is 
 the same as the registry acts' respecting mortgages of real 
 estate, viz., •^- to prevent imposition upon subsequent pur- 
 chasers and mortgagees, and to prevent them from being- 
 misled by the possession and apparent absolute ownership 
 of the mortgagor 
 
 Meech V, Pgitchin, 14 N. Y. 72. 
 Patterson v. Gillies, 64 Barb. 563. 
 Mack V. Phelan, 92 N. Y. 25. 
 
 The invalidity of a chattel mortgage as against creditors, 
 because it has not been filed, is not based on the ground of 
 fraud ; and it is not deemed fraudulent by reason of the 
 omission to file, but the purpose of the statute is to furnish 
 means of notice of the lien, and the consequence of the 
 omission is in the nature of a penalty for such neglect. 
 
 Niagara Co. Nat. Bank v. Lord, 33 Hun, 557. Citing 
 Ball V. Slafter, 26 Hun, 355. 
 Southard v. Benner, 72 N. Y. 428. 
 
 In the city of New York, the proper place to file a mort- 
 gage of personal property is the register's office. In all 
 the other cities of the State, and in the towns of the State 
 in which a county clerk's office is kept, the instrument must 
 be filed in such county clerk's office ; and in each of the 
 other towns of the State in the office of the town clerks 
 thereof. 
 
 Martin v. Rothschild, 6 N. Y. St. Rep. 76 ; s. c, 
 42 Hun, 410. 
 
i6 CHATTEL MORTGAGES. 
 
 It was enacted by the Laws of 1864, chapter 412, that 
 every person having a lien by chattel mortgage on any boat 
 navigating the canals of this State, is required to file the 
 same in the office of the auditor of the canal department, 
 and if not so filed should be void against creditors. 
 
 Keller v. Paine, 11 N. Y. St- Rep. 330; s. c, 107 
 N. Y. 83; see chapter 69, Laws of 1883. 
 
 By an act of Congress passed July 29, 1850, it is provided 
 that every mortgage of any vessel of the United States shall 
 be recorded in tfie office of the collector of customs where 
 such vessel is registered or enrolled. 
 
 The courts of the United States have held that the statute 
 gives validity to a mortgage, otherwise free from objection, 
 whatever may be the laws of the State where it is executed, 
 or where the mortgagee or, mortgagor may reside. 
 
 Such mortgage need not be again filed in the clerk's office 
 as required by our statute. 
 
 Folger V. Weber, 16 Hun, 515. Citing 
 White's Bank v. Smith, 7 Wall. 646. 
 Aldrich v. ^tna Co., 8 Wall. 491. 
 
 A mortgage given by a joint stock company, must be filed 
 
 in the town clerk's office of the town where the principal 
 
 office of the company is located, and its business principally 
 
 carried on. 
 
 Nelson v. Neil, 15 Hun, 383. 
 
 The instrument must be filed in the clerk's office of the 
 town in which the mortgagor resided at the time of its exe- 
 cution, whether the mortgagor be a resident of that town or 
 not, at the time of the filing. 
 
 Hicks V. Williams, 17 Barb. 523. 
 
 The fact of the place of residence controls the place of 
 filing, not the recital of it in the instrument. That is of no 
 
WHERE FILED. 17 
 
 importance, and might for the matter of the security be 
 omitted altogether. "■ 
 
 Chandler v. Bunn, Lalor's Supplement to Hill and 
 Denio, 167. 
 
 The subsequent removal of the mortgagor into the town 
 where it is filed will not remedy, the defect ; the language of 
 the statute is clear. 
 
 Powers V. Freeman, 2 Lans. 127. 
 
 If the mortgagor be a non-resident, the mortgage must be 
 filed in the city or town where the property so mortgaged 
 shall be at the time of the execution of such instrument. 
 
 Laws of 1833, chapter 279, section 2. 
 
 A mortgage made by joint mortgagors as partners, resid- 
 ing in different towns, must be filed in each of the towns in 
 which the mortgagors reside. 
 
 Stewart v. Piatt, loi U. S. 731. 
 
 In that case, the mortgagors resided in Westchester county, 
 and were lessees of a hotel in the city of New York. They 
 made a mortgage of the furniture of the hotel which was 
 filed in the office of the register of deeds for the city and 
 county of New York, but was not filed in the towns where 
 the mortgagors respectively resided, as required by our 
 statute. 
 
 It was held that the mortgage was not properly filed. 
 
 Mr. Justice Harlan, delivering the opinion of the court, 
 said : " The contention of learned counsel for the appel- 
 lants is that the firm was the mortgagor ; that its residence 
 or domicile was in the city of New York ; and that the mani- 
 fest object of the statute was met by filing the several 
 mortgages in the city where the firm carried on its business. 
 The question thus presented is within a very narrow com- 
 
 3 
 
i8 CHATTEL MORTGAGES. 
 
 pass, and is not free from difficulty. Its solution depends 
 upon the meaning of the word reside, employed in the stat- 
 ute ; it is to be regretted that we are not guided by some 
 direct controlling adjudication in the courts of New York 
 construing the statute under examination, but no such 
 decision has been brought to our attention. With some 
 hesitation we have reached the conclusion that a chattel 
 mortgage executed by a firm upon firm property, is void 
 under the New York statute as against creditors, subsequent 
 purchasers, and mortgagees in good faith, unless filed in the 
 city or town where the individual members of the firm sev- 
 erally reside. The statute upon its face furnishes persuasive 
 evidence that its framers intended to make a sharp distinction 
 between the place where the property might be at the time 
 of the execution of the mortgage, and the place of the mort- 
 gagor's residence. If he be a non-resident of the State of 
 New York, the mortgage may be filed in the town or city 
 where the property shall be at the time of the execution of 
 the mortgage. If he be a resident, then his residence, not 
 the actual situs of the property, governs. If these instru- 
 ments be executed by several resident mortgagors, the 
 statute would seem to require that the mortgage be filed 
 in the towns or cities where the mortgagors at the time 
 respectively reside." 
 
 The removal of a mortgaigor from the town or county in 
 which he resided when the mortgage was executed, and the 
 taking of the mortgaged property with him, does not neces- 
 sitate the filing of it again in the town or county to which 
 he has removed. 
 
 Hicks V. Williams, 17 Barb. 523. 
 
 Chattel mortgages upon property in the town of Flatbush, 
 Kings county, should be filed in the office of the clerk of 
 that town, and not in the office of the register of Kings 
 county, notwithstanding Laws of 1852, chapter 83, requiring 
 the register of Kings county to do like acts required to be 
 done by the register in the city of New York, 
 
 Martin v. Rothschild, 42 Hun, 410. 
 
HOW FILED. 19 
 
 II. How Filed. 
 
 As to the manner of filing a chattel mortgage, the mort- 
 gagee is not bound to do any thing more than to deliver the 
 mortgage at the proper office, and to the proper officer, or 
 to any person of proper age who has charge of the office. 
 
 2 Wait's Actions and Defenses, 195. 
 
 A delivery of a chattel mortage to the clerk while absent 
 from his office, and an endorsement made thereon, that it is 
 then and there filed, is not a filing. It is not filed in reality 
 until it is deposited in the clerk's office. 
 
 Hathaway v. Howell, 54 N. Y. 103. 
 
 The statute contains no directions as to the time in which 
 a chattel mortgage should be filed, and in the absence of 
 such provision, the courts have no power to supply the de- 
 ficiency, or to declare a mortgage void because of its not 
 having been filed at the time it was executed. 
 
 Hicks V. Williams, 17 Barb. 523. 
 
 It should be filed as soon as practicable after the mortgage 
 is executed. Delay in filing only subjects the mortgagee to 
 the rights of intervening creditors and bona fide purchasers. 
 
 Parshall v. Eggert, 52 Barb. 537. 
 Hicks V. Williams, 17 Barb. 523. 
 Wescott V. Gunn, 4 Duer, 107. 
 
 Where the office of town clerk being vacant, a person who 
 has charge of the office received a chattel mortgage brought 
 to the office, filed it, endorsed it, and placed it among the 
 chattel mortgages on file, held, that this was a valid filing 
 within the meaning of the statute. 
 
 Bishop V. Cook, 13 Barb. 326. 
 
20 CHATTEL MORTGAGES, 
 
 An error of the clerk in filing the mortgage does not in- 
 validate it. It is good as against subsequent purchasers. 
 The remedy of the purchaser is against the clerk. 
 
 Dikeman v. Puckhafer, i Daly, 489. 
 
 It is the duty of the register to index a chattel mortgage 
 duly filed with him, and his omission to do so cannot preju- 
 dice the lien of a mortgagee who has Mone all required of 
 him to make the mortgage valid. 
 
 Dikeman v. Puckhafer, supra. 
 
 The filing by a clerk in the store of the town clerk, in 
 charge of the town clerk's office is a sufficient filing. 
 
 Dodge V. Potter, 18 Barb. 201. 
 
 The original mortgage need not be filed. A copy is suffi- 
 cient under the statute. It must be a true copy. But a 
 trifling mistake will not vitiate upon the principle that the 
 law will not regard trifles ; but the object of the statute 
 must be regarded, and any attempt at compliance not attain- 
 ing such object will be held a nullity. 
 
 Ely V. Carnley, 19 N. Y. 498. 
 
 After a mortgage has been filed, the advantage of such 
 filing may be lost, by taking it from the file of the clerk's 
 office. Such removal will suspend its validity during the 
 time it is off the file. 
 
 Swift V. Hart, 12 Barb. 531. 
 Fox V. Burns, 12 Barb. 677. 
 
 III. Effect of Omission to File. 
 
 The omission to file a chattel mortgage does not vitiate 
 the mortgagee's right against a mortgagee or purchaser with 
 
EFFECT OF OMISSION TO FILE. 21 
 
 knowledge ; and such unfiled mortgage is good as against all 
 subsequent incumbrancers with knowledge of its existence, 
 except a judgment creditor. 
 
 Zimmer v. Wheeler, 2 N. Y. St. Rep. 325 ; s. c, 41 
 
 Hun, 638. Citing 
 Farmers' Loan & Trust Co. v. Hendrickson, 25 
 
 Barb. 484. 
 Gildersleeve v. Landon, 73 N. Y. 609. 
 
 The statute does not render a chattel mortgage absolutely 
 void for the omission to file, but simply declares it void as 
 to judgment creditors and subsequent purchasers in good 
 faith. As to other persons it is valid without filing. 
 
 Hayman v. Jones, 7 Hun, 238. 
 
 If a purchaser has notice of an unfiled mortgage at the 
 time of purchase, that notice stands in the place of filing, 
 and his purchase is subject to the lien of the mortgage. 
 
 Mack V. Phelan, 92 N. Y. 25. 
 
 The omission to file a chattel mortgage as required by the 
 statute, makes the security void per se, but it is only void as 
 against judgment creditors and subsequent purchasers in 
 good faith. A purchaser with notice cannot claim to be a 
 purchaser in good faith within the statute. 
 
 Sanger v. Eastwood, ig Wend. 514. 
 
 The omission to file does not affect its validity as between 
 the parties, ,and a delay in filing it only renders it void as 
 against an intervening purchaser in good faith, or an inter- 
 vening creditor by execution. 
 
 Wescott V. Gunn, 4 Duer, 107. 
 Smith V. Acker, 23 Wend. 653. 
 Hayman v. Jones, 7 Hun, 238. 
 Pancoast v. The American Heating and Power Co., 
 66 How. 49. 
 
22 CHATTEL MORTGAGES. 
 
 It has been the settled law of this State since the decision 
 in the case of Thompson v. Van Vechten, 27 N. Y. 568, that 
 a mortgage not filed, of a chattel not delivered, is void as to 
 a creditor at large whose claim accrues while the default in 
 filing continues, though such creditor is not in a position to 
 raise the question until he has obtained judgment or process 
 against the property. 
 
 Campbell Printing Press Co. v. Damon, 16 N. Y. St. 
 Rep. 133 ; s. c, 48 Hun, 509. 
 
 The subsequent delivery of the property and foreclosure 
 of the mortgage, could not affect the rights of creditors 
 which had already attached. 
 
 Ibid. 
 
 A chattel mortgage is valid although not filed as against 
 a general creditor. 
 
 Button V. Rathbone, Sard & Co., 43 Hun, 148. 
 
 A creditor, to take advantage of the omission to file, is he 
 who has a judgment and proceeds upon that, and procures 
 an attachment or execution. ' 
 
 Hendricks v. Robinson, 2 Johns. Ch. 296. 
 
 Brinkerhoffv. Brown, 6 Johns. Ch. 139. 
 
 Fox V. Mayer, 54 N. Y. 129. 
 
 Heye v. Bolles, 33 How. 277. 
 
 Hotchkiss V. McVickar, 12 Johns. 407. 
 
 Stewart v. Beale, 68 N. Y. 629. 
 
 Kennedy v. Nat. Union Bank., 23 Hun, 496. 
 
 Niagara Co. Nat. Bank v. Lord, 33 Hun, 557. 
 
 Campbell Printing Press Co. v. Damon, 16 N. Y. 
 
 St. Rep. 133; s. c, 48 Hun, 509. 
 Jones V. Graham, 77 N. Y. 628. 
 Sullivan v. Miller, 106 N. Y. 641. 
 
EFFECT OF OMISSION TO FILE. 23 
 
 The fact that the creditor had knowledge of the mort- 
 gage makes no difference, as under the statute, the instru- 
 ment is as to him void, unless the same is filed. 
 
 Best V. Staple, 61 N. Y. 71. 
 
 A second mortgagee who has personal knowledge of the 
 existence of a prior chattel mortgage, is not entitled to pri- 
 ority over it, although the second mortgage is first filed. 
 
 Zimmer v. Wheeler, 2 N. Y. St. Rep. 325; s. c, 41 
 Hun, 638. 
 
 In case of two chattel mortgages executed by the same 
 person upon the same property, but to different persons, 
 dated the same day and filed the same moment, where it 
 was the agreement and intention of the parties, that one 
 should have a preference over the other as a lien, that agree- 
 ment must be sustained, and effect must be given to it, and 
 the intention of the parties. 
 
 Wray v. Fedderke, 11 Jones & Spencer, 338. 
 
 An unfiled mortgage on property subsequently brought 
 by the mortgagor into a firm, of which he has become a 
 member, as his portion of the capital, is not invalid as to the 
 other partners by reason of its non-filing. The property 
 comes into the concern impressed with the lien of the mort- 
 gage. 
 
 Rust V. Hauslet, 46 Supr. Ct. Rep. 24. 
 
 Leases for years of real estate, and assignments thereof 
 by way of mortgage, are not within the acts relating to the 
 recording or filing of chattel mortgages. Such leases are 
 chattels real, and not mere chattels. 
 
 Breese v. Bauge, 2 E. D. Smith, 474. 
 Booth v. Kehoe, 71 N. Y. 341. 
 
24 CHATTEL MORTGAGES. 
 
 An assignee for the benefit of creditors is not a purchaser 
 in good faith within the meaning of the statute, and cannot 
 take advantage of an omission to file a chattel mortgage. 
 The statute does not say that such failure makes the 
 mortgage fraudulent as to creditors, but simply that as to 
 them it .shall be void. And the act of 1858 giving an as- 
 signee for the benefit of creditors the right to invalidate a 
 transfer of property, extends only to defects based upon 
 fraud or fraudulent intent. 
 
 Southard v. Benner, 72 N. Y. 424. 
 Ball V. Slafter, 26 Hun, 355. 
 
 The power of an assignee for the benefit of creditors, ex- 
 ecutor, administrator, receiver, or other trustee, to impeach 
 fraudulent acts of the assignor, testator, etc., conferred by 
 chapter 314 of the Laws of 1B58, does not enable him to set 
 aside a chattel mortgage, merely upon the ground that it 
 was not duly filed ; for the omission, although it avoids the 
 mortgage as to creditors, does not make it within the mean- 
 ing of the statute a fraudulent act. The purpose of the 
 statute (1858) is to confer power to treat as void, etc., only 
 acts done, and transfers made with fraudulent intent. 
 
 Chrisfield v. Bogardus, 18 Abb. N. C. 334. 
 
 The lien of a chattel mortgage duly filed, is superior to 
 one created subsequently by the mortgagor for the expense 
 of keeping the mortgaged property. 
 
 Bissell V. Pearce, 28 N. Y 252. 
 
 A provision in a lease, by which a lien is given upon pro- 
 ducts from the property leased, as security for the rent, is in 
 effect a chattel mortgage, and must be filed. (Follett, J., 
 dissenting.) 
 
 Betsinger v. Schuyler, 46 Hun, 352. Citing 
 Johnson v. Crofoot, 53 Barb. 574. 
 
EFFECT OF OMISSION TO FILE. 25 
 
 Yenni v. McNamee, 45 N. Y. 615. 
 Steffin V. Steffin, 4 Civ. Pro. Rep. 187. 
 McCaffrey v. Woodin, 65 N. Y. 459. 
 Thomas v. Bacon, 34 Hun, 88. 
 Hawkins v. Giles, 45 Hun, 318. 
 
 These cases holding that if said mortgage is not filed it is 
 invalid as against the persons described in section three of 
 the act of 1833. 
 
 A provision in a lease by which it is agreed that the lessor 
 is to have a lien upon the growing crops, must be filed to be 
 valid against mortgagees in good faith. 
 
 Duffus V. Bangs, 43 Hun, 53. 
 
 A farm lease upon shares which provides that the lessor 
 shall have a lien upon all crops sown on the premises, as se- 
 curity for the performance of the covenants under the lease, 
 must be filed. 
 
 Thomas v. Bacon, 34 Hun, 88. 
 
 A clause in a lease of real estate which provides that the 
 lessor shall have " a lien as security for all the rent," etc., 
 upon all goods, wares and merchandise, and all other per- 
 sonal property which are, or may be on the premises de- 
 mised, held, that such lien might be enforced, and a sale had 
 thereunder the same as under a chattel mortgage, and that 
 the same must be filed, and that if not filed, it was void as 
 against creditors. 
 
 Reynolds v. Ellis, 34 Hun, 47 ; S. C, 103 N. Y. 122. 
 
 The omission to file a chattel mortgage, executed by a 
 corporation in another State, does not affect its validity. 
 
 The statutes requiring the filing of such mortgages have 
 no extra territorial force. 
 
 Nichols V. Mase, 25 Hun, 640. Citing 
 ^tna Ins. Co. v. Aldrich, 26 N. Y. 96. 
 Egerly v. Bush, 81 N. Y. 199. 
 4 
 
26 CHATTEL MORTGAGES. 
 
 A mortgagee of chattels cannot obtain a lien upon other 
 similar chattels, as against a subsequent purchaser thereof, 
 through a verbal arrangement between himself and his mort- 
 gagor, to consider them substituted in the place of those de- 
 scribed in the mortgage. He must pursue the statute 
 respecting the fihng literally. 
 
 Powers V. Freeman, 2 Lans. 127. 
 
 A chattel mortgage, valid in other respects, Is not invalid 
 as against one purchasing of the mortgagor with knowledge 
 of its existence, although not filed. 
 
 Gildersleeve v. Landon, 73 N. Y. 609. 
 
 A purchaser, who purchases property within the year, 
 covered by a chattel mortgage, although having construc- 
 tive notice of the mortgage, by reason of its being filed, can 
 convey good title to a purchaser after the expiration of the 
 year, such person being a subsequent purchaser. 
 
 Wooster v. Sherwood, 25 N. Y. 286. 
 Dillingham v. Bolt, 37 N. Y. 197. 
 
 A chattel mortgage on file contained a clause referring to 
 the conditions of another instrument, and provided that 
 upon default in the performance of those conditions, the 
 mortgage debt should become due and payable at once. 
 
 This second instrument was not filed. It was held, how- 
 ever, that the mortgage was valid, and was duly filed. 
 
 Shuler v. Boutwell, 8 Week. Dig. 442. 
 
HOW REFILED. 27 
 
 OF THE REFILING OF CHATTEL MORTGAGES. 
 
 IV. Where Refiled. 
 
 Section three of the act of 1833, as amended by chapter 
 501 of the Laws of 1873, and further amended by chapter 
 418 of the Laws of 1879, reads as follows : " Every mortgage 
 filed in pursuance of this act shall cease to be valid as against 
 the creditors of the person making the same, or against sub- 
 sequent purchasers or mortgagees in good faith, after the 
 expiration of one year from the filing thereof, unless within 
 thirty days next preceding the expiration of each and every 
 term of one year after the filing of such mortgage, a true 
 copy of such mortgage, together with a statement exhibit- 
 ing the interest of the mortgagee in the property thereby 
 claimed by him, by virtue thereof, shall be again filed in the 
 oiifice of the clerk or register aforesaid, in the town or city 
 where the mortgagor shall then reside. If the mortgagor 
 shall then be a resident of this State, and if not such resi- 
 dent, then in the office of the clerk or register of the town 
 or city where the property so mortgaged, was at the time of 
 the execution of such mortgage." 
 
 The mortgage must be refiled if the mortgagor is a resi- 
 dent of the State, in the clerk's office of the town or city 
 where he shall then reside. If not such resident, then in 
 the office of the clerk or register of the town or city where 
 the mortgaged property was at the time of the execution 
 of the mortgage. 
 
 Laws of 1879, chapter 418. 
 
 V. How Refiled. 
 
 The object of the refihng is merely to extend and con- 
 tinue in operation the effect of the first filing, as to the 
 amount remaining unpaid for another year, and to make 
 
28 CHATTEL MORTGAGES. 
 
 known to all interested the state of the property, and the 
 incumbrance upon it from year to year. 
 
 Dillingham v. Bolt, 37 N. Y. 200. 
 Marsden v. Cornell, 62 N. Y. 219. 
 
 The statement of the mortgagee's interest required by 
 the statute upon the refiling of a chattel mortgage, must be 
 made by the mortgagee in person, or by his attorney. A 
 statement made by the mortgagor, or by third persons, is 
 not sufficient. 
 
 Osborn v. Alexander, 40 Hun, 328. 
 
 Under the provisions of the statute, a statement is suffi- 
 cient which annexes and refers to another document filed 
 with it, if the two papers read together in connection with 
 the original mortgage, disclose the intent of the mortgagee 
 intelligibly. Thus, on refiling a chattel mortgage which was 
 given to secure certain notes, and also certain outstanding 
 liabilities, the statement annexed was, that the unpaid notes 
 constituted the amount of the mortgagee's interest, and 
 made no reference to the outstanding liabilities. 
 
 The statement was held good as to the notes, but not 
 good as to outstanding liabilities. 
 
 Beers v. Waterbury, 8 Bosw. 396. 
 
 The filing of a new mortgage in place of the old one, and 
 filing it within the time prescribed, is not sufficient, for this 
 is not a declaration by the mortgagee of his interest. 
 
 Osborn v. Alexander, 40 Hun, 323. 
 
 But such filing of a new mortgage does not affect the lien 
 of the mortgage, nor render it invalid, except that the mort- 
 gagee takes the risk of a levy upon an execution, after the 
 first mortgage ceased to be a lien, and before the new one 
 was filed. 
 
 Walker v. Henry, 85 N. Y. 134. 
 
HOW REFILED. 29 
 
 The filing of a true copy, without the filing of the state- 
 ment of the mortgagee's interest, is not sufficient. There 
 must be both a copy and a statement. 
 
 Marsden v. Cornell, 62 N. Y. 219. 
 
 A clerical error in the copy of a chattel mortgage and the 
 accompanying statement of the amount claimed, by which 
 the amount is overstated $100, is fatal. 
 
 Ely V. Carnley, 19 N. Y. 496. 
 
 The mortgagor, with the concurrence of the mortgagee, 
 made at the expiration of the year, the following endorse- 
 ment, and filed the same : " This chattel mortgage is hereby 
 renewed for one year from this date. As witness my hand 
 and seal. 
 Sworn to," etc. 
 
 The effect of this act by the mortgagor was to create a 
 new mortgage, and such statement was held good as against 
 an execution creditor. 
 
 Smith V. Cooper, 22 Hun, 11. 
 
 Where a chattel mortgage has been duly filed in the proper 
 clerk's office, and within the time specified in the statute, 
 the <?n]g?«a;/ mortgage, with an endorsement thereon, exhibit- 
 ing the mortgagee's interest in the property, is refiled in said 
 office such refiling is equivalent to filing a true copy as re- 
 quired by the statute, and a sufficient compliance with it. 
 
 Stockham v. Allard, 2 Hun, 67. Citing 
 Dillingham v. Bolt, 37 N. Y. 197. 
 jFitch V. Humphrey, i Den. 163. 
 Patterson v. Gillies, 64 Barb. 563. 
 Powers V. Freeman, 2 Lans. 127. 
 
 In the absence of fraud, it is not essential to the validity 
 of the mortgage and the preservation of the lien, that the 
 
30 CHATTEL MORTGAGES. 
 
 Statement should be definite and accurate even to the small- 
 est amount. If it is made in good faith, with reasonable 
 care, and is substantially correct and accurate, it is sufficient. 
 Thus : a statement in these words, " The above is a true 
 copy of a chattel mortgage on file at , on which the 
 
 whole, or nearly the whole amount is unpaid, and due April 
 I, 1870," was held a compliance with the statute, and suiifi- 
 ciently definite. 
 
 Patterson v. Gillies, supra. 
 
 An understatement of the amount due, does not affect the 
 validity of the mortgage as to the amount which is stated. 
 
 Beers v. Waterbury, 8 Bosw. 346. 
 
 A statement upon refiling is sufficient, although it failed to 
 give a credit of $2 upon a debt of several hundred dollars. 
 
 Patterson v. Gillies, supra. 
 
 A statement that " somewhere about the sum of $60 as 
 near as can be ascertained," remained unpaid upon the mort- 
 gage, was accepted as sufficiently accurate. 
 
 Dillingham v. Bolt, supra. 
 
 VI. When Refiled. 
 
 The statute provides that every mortgage shall cease to 
 be valid against creditors, subsequent purchasers and 
 mortgagees in good faith, unless within thirty, days next 
 preceding the expiration of each and every term of one year 
 after the filing of such mortgage, a true copy of such mort- 
 gage and statement shall be filed, etc. 
 
 Laws of 1879, chapter 418. 
 
WHEN REFILED. 31 
 
 A refiling before the commencement of the thirty days 
 would be as nugatory as one after the expiration of that 
 time. 
 
 Newell V. Warner, 44 Barb. 258. 
 
 A refiling of a chattel mortgage after the expiration of the 
 year, restores and revives the lien, and is valid as against 
 creditors and purchasers. 
 
 Nixon V. Stanley, 33 Hun, 248. Citing 
 Swift V. Hart, 12 Barb. 530. 
 
 And overruling in effect 
 
 Newell V. Warner, supra. 
 
 A mortgagee of chattels, to uphold his title as against the 
 creditors of the mortgagor, if the property remain in the 
 possession of the mortgagor, must refile his mortgage within 
 the year as required by the provisions of the act, although 
 default has been made in the payment. 
 
 Ely V. Carnley, 19 N. Y. 496. 
 Porter v. Parmly, 52 N. Y. 187. 
 Steele v. Benham, 84 N. Y. 634. 
 
 So the second year, and each successive year, it must be 
 accompanied with a statement of just the amount still un- 
 paid, so that it may appear what has been paid, if any thing, 
 or whether the debt has increased by the interest upon it. 
 It is a fraud if this be not stated truly. 
 
 Marsden v. Cornell, 62 N. Y. 219. 
 
 No subsequent refiling after the first, seems to be neces- 
 sary under the statute of 1864, to keep a chattel mortgage 
 a continuing security upon a canal boat. 
 
32 CHATTEL MORTGAGES. 
 
 If the last day of refiling falls on Sunday, the mortgage 
 must be refiled on or before the Saturday preceding. 
 
 Newell V. Warner, supra. 
 
 VII. Effects of Omission to Refile. 
 
 The statute provides, that unless refiled a mortgage shall 
 cease to be valid against creditors, subsequent purchasers 
 and mortgagees in good faith, etc. A chattel mortgage, how- 
 ever, is valid as against the mortgagor although not refiled. 
 
 Steward v. Cole, 4 N. Y. St. Rep. 429; s. c, 43 
 
 Hun, 164. 
 Hayman v. Jones, 3 Week. Dig. 230 ; s. c, 7 Hun, 238. 
 
 The omission to refile at the end of the year, the state- 
 ment and mortgage, renders the mortgage invalid as against 
 creditors. 
 
 Marsden v. Cornell, 62 N. Y. 215. 
 
 Steele v. Benham, 84 N. Y. 634. 
 
 But the failure to refile, does not render it invalid as 
 against a receiver appointed in supplementary proceedings, 
 for the reason that the receiver stands in the place of the 
 mortgagor. 
 
 Steward v. Cole, supra. 
 
 A purchaser, with actual knowledge of the existence of a 
 chattel mortgage, cannot take advantage of its not having 
 been legally renewed. 
 
 Thompson v. Van Vechten, 6 Bosw. 375. 
 Gregory v. Thomas, 20 Wend. 17. 
 Lewis V. Palmer, 28 N. Y. 271. 
 
 The omission to refile a chattel mortgage, pursuant to the 
 third section of the act, does not render it invalid as against 
 
EFFECT OF OMISSION TO REFILE. 33 
 
 purchasers or mortgagees intermediate the orignal filing and 
 the omission to refile. The term subsequent in that section 
 means after the time for refiling has elapsed. 
 
 Meech v. Patchin, 14 N. Y. 71. 
 
 Lattimer v. Wheeler, 30 Barb. 480. 
 
 Wray v. Fedderke, 1 1 Jones & Spencer, 338. 
 
 Manning v. Monaghan, 23 N. Y. 539. 
 
 Thompson v. Van Vechten, 6 Bosw. 375. 
 
 Shutter v. Ward, 16 N. Y. Week. Dig. 69. 
 
 Jaqueth v. Merritt, 29 Hun, 584. 
 
 A chattel mortgage given for a pre-existing indebtedness, 
 although valid as between the parties, does not constitute 
 the mortgagee a purchaser or incumbrancer in good faith, 
 within the statute. 
 
 Tiffany v. Warren, 24 How. 293. 
 
 Zimmer v. Wheeler, 2 N. Y. St. Rep. 325; s. c, 41 
 
 Hun, 638. 
 Wood V. Robinson, 22 N. Y. 567. 
 Williams v. Shelly, 37 N. Y. 375. 
 Weaver v. Barden, 49 N. Y. 286. 
 Gary v. White, 52 N. Y. 138. 
 Van Huesen v. RadcHff, 72 N. Y. 580. 
 Jones V. Graham, 77 N. Y. 628. 
 Farrington v. Frankford Bank, 24 Barb. 554, 
 Ray v. Birdseye, 5 Den. 619. 
 Osborn v. Alexander, 40 Hun, 325. 
 Betsinger v. Schuyler, 46 Hun, 352. 
 
 The filing of a chattel mortgage is notice to a subsequent 
 mortgagee whose mortgage is filed before the expiration of 
 the year, but a purchaser under a sale made under such 
 second mortgage, after the expiration of the year, gets good 
 title, and the first mortgage is of no validity as against him 
 if the mortgage be not refiled. 
 
 Dillingham v. Bolt, 37 N. Y. 198. 
 Marsden v. Cornell, 62 N. Y. 215. 
 
 5 
 
34 CHATTEL MORTGAGES. 
 
 Jaqueth v. Merritt, 29 Hun, 584. 
 Zoeller v. Riley, 100 N. Y. 103. 
 
 Estoppel. — A party accepting a transfer of personal prop- 
 erty expressly subject to a mortgage held by another, is es- 
 topped from claiming a prior lien upon the property, by vir- 
 tue of a previous mortgage not properly renewed. 
 
 Jones V. Howell, 3 Robt. 438. See 
 Horton v. Davis, 26 N. Y. 495. 
 
 CHAPTER III. 
 
 •THE VALIDITY OF CHATTEL MORTGAGES. 
 
 I. Between the parties. VI. Agreements which do not in- 
 
 II. The controlling law as to va- validate the mortgage. 
 
 lidity. VII. Of mortgages upon fixtures. 
 
 III. Change of possession. VIII. How and by whom the validity 
 
 IV. What interests may be mort- may be contested. 
 
 gaged. 
 V. Agreements which render the 
 mortgage void. 
 
 I. Between the Parties. 
 
 A chattel mortgage can have no force or effect, unless it 
 be given to secure a valid debt. It must have a legal incep- 
 tion. A chattel mortgage given for money knowingly ad- 
 vanced for the purpose of compounding a felony is void. 
 So a mortgage given under duress is void. 
 
 Fellows V. Van Hyring, 23 How. 230. 
 
BETWEEN THE PARTIES. 35 
 
 So a chattel mortgage will be void if given to secure a 
 debt tainted with usury. 
 
 Thompson v. Van Vechten, 27 N. Y. 568. 
 
 A chattel mortgage is valid as between the parties to it, 
 although never filed. 
 
 Zimmer v. Wheeler, 41 Hun, 638. 
 Steward v. Cole, 43 Hun, 164. 
 
 So a chattel mortgage is valid, between the parties, which 
 covers property to be acquired in the future. 
 
 Ludwig V. Kipp, 20 Hun, 265. 
 
 It is competent for parties to agree upon the sale and pur- 
 chase of property, that the vendor shall retain a lien upon 
 the property sold, as well as upon the article into which it 
 shall be manufactured ; and in such case a lien will attach 
 upon the new article as soon as it comes into existence. 
 
 Dunning v. Stearns, 9 Barb. 630. 
 
 A chattel mortgage given to secure the present and future 
 indebtedness of the mortgagor to the mortgagee, is valid as 
 between the parties thereto, and when free from fraud, is 
 valid as to creditors. 
 
 Brown v. Kiefer, 71 N. Y. 610. 
 
 As between mortgagor and mortgagee, personal chattels, 
 which by being annexed to the freehold, would otherwise be- 
 come a part of the realty, may by agreement, still be treated 
 as personalty. And such arrangement will bind one claim- 
 ing under the mortgagee. In equity, a merger never takes 
 place contrary to the intention of the parties, or the require- 
 ments of justice. 
 
 Sheldon v. Edwards, 35 N. Y. 279. 
 
36 CHATTEL MORTGAGES. 
 
 The fraudulent acts of one mortgagee will not invalidate 
 the mortgage, nor affect the rights of the other mortgagees. 
 
 Smith V. Post, r Hun, 518., 
 
 II. The Controlling Law as to Validity. 
 
 In this State it is held that where a contract in regard to 
 personal property is made in another State, that the law of 
 such State, as to its validity and effect, is to govern here, and 
 if valid there, it is to be considered equally valid, and can 
 be enforced here. 
 
 The principle is well settled, that a voluntary conveyance 
 of personal property, good by the law of the place where 
 it was made, passes title wherever the property may be sit- 
 uated. 
 
 Nichols V. Mase, 94 N. Y. 166. Citing 
 ^tna Ins. Co. v. Aldrich, 26 N. Y. 96. 
 Hoyt V. Thompson's Exr., 19 N. Y. 224. 
 Edgerly v. Bush, 81 N. Y. 203. 
 
 Though a transfer of personal property, valid by the law 
 of the domicile, is valid everywhere as a general principle, 
 there is to be excepted that territory in which it is situated, 
 and where a different law has been set up, when it is neces- 
 sary, for the purpose of justice, that the actual situs of the 
 property be examined. 
 
 Edgerly v. Bush, 81 N. Y. 204. 
 
 In that case the mortgagor and mortgagee were both 
 residents of this State. The mortgagor removed to Lower 
 Canada taking the mortgaged property with him. After- 
 ward a regular dealer in horses there, sold the horses to one 
 B., who immediately brought the property into this State. 
 B. bought in good faith, in ignorance of the mortgage. 
 Learning that there was a mortgage upon the team, to pre- 
 vent their seizure he removed the team to Lower Canada, 
 where they were sold to the defendant, who was a resident 
 
THE CONTROLLING LAW AS TO VALIDITY. 37 
 
 of this State. But the property was not thereafter brought 
 into this State. Plaintiff made a demand for the property, 
 but defendant refused to deliver, and the plaintiff did not 
 offer to reimburse defendant for the horses. Under the 
 laws of Lower Canada, if an article of personal property 
 lost or stolen, be sold in a fair or market or at a public 
 sale, or purchased from a trader dealing in similar articles, 
 the owner cannot reclaim it without reimbursing to the pur- 
 chaser, the price paid by him for the property. Folger, 
 C. J., delivering the opinion of the court, said: " It is plain 
 that on no principle applicable to this case, could the sale of 
 plaintiff's property by another, having no authority from 
 him, and indeed to his wrong, be upheld save that it was au- 
 thorized by the statute of Lower Canada ; so that the ques- 
 tion is one entirely of the comity to be shown by the courts 
 of this State, to the enactments of another country. Those 
 statutes not only enact the rule of market overt as it pre- 
 vails in general in England, but carry it further, and make 
 as in the city of London, every sale by a trader dealing in 
 like articles as good as a sale at market overt. That rule 
 does not obtain in this State. It has not been our policy 
 to establish it. Our policy has been, and is, to protect the 
 right of ownership, and to leave the buyer to take care that 
 he gets good title. 
 
 " It would be to the contravention of that policy and to 
 the inconvenience of our citizens, if we should give effect to 
 these statutes of Lower Canada to the divesting of titles to 
 movables lawfully acquired, and held by our general and 
 statute law without the assent or intervention and agaiiist 
 the will of the owner by our law. We doubt whether, in a 
 case where after a title to property has been acquired by the 
 law of the domicile of the vendor, and of the situs of the 
 thing, and of the forum in which the parties stand, in a con- 
 test between citizens of the State of that forum, it has ever 
 been adjudged, that such title has been divested by the 
 surreptitious removal of the thing into another State, and a 
 sale of it there under different laws." 
 
 The general rule that the voluntary transfer of personal 
 
38 CHATTEL MORTGAGES. 
 
 property, wherever situated, is to be governed by the law of 
 the owner's domicile, always yields, when the law and the 
 policy of the State where the property is actually located, 
 have provided a different rule of transfer from that of the 
 State where the owner lives. 
 
 Warner v. Jaffray, 96 N. Y. 248. 
 Edgerly v. Bush, 81 N. Y. 199. 
 Keller v. Paine, 107 N. Y. 89. Citing 
 4 Abb. Ct. App. Dec. 457. 
 
 The liability of property to be attached and sold under 
 legal process, issuing from the courts of the State in which 
 the property is actually situated, must be determined by the 
 law of that State, rather than that of the jurisdiction where 
 the owner lives. 
 
 Keller v. Paine, supra. 
 
 In that case, F., a resident of Pennsylvania, executed to 
 plaintiff in that State, an instrument in form an absolute 
 bill of sale, but in fact given as a chattel mortgage, on a 
 canal boat owned by him then lying in the Erie canal in the 
 town of G. F., in this State. An agent of the mortgagee 
 filed a copy of the mortgage in the town clerk's office of 
 said town, and went on board the boat and assumed posses- 
 sion thereof. Defendant, however, had previously on the 
 ■same day, as sheriff, levied upon the boat by virtue of an 
 attachment against F., and subsequently sold it on execu- 
 tion. The parties were all residents of the State of Penn- 
 sylvania. In an action for conversion of the boat, held that 
 both under the provisions of the Revised Statutes relating 
 to chattel mortgages, and the act in relation to liens on 
 canal boats, (chapter 413, Laws of 1864), the instrument 
 was void by reason of the failure to properly file the same, 
 and plaintiffs were not entitled to recover. 
 
 The provisions of the Revised Statutes, relative to chattel 
 mortgages, have no application to a mortgage executed in a 
 
CHANGE OF POSSESSION. 39 
 
 British province upon a British vessel. It is by the rules of 
 the common law that the validity of such a mortgage must 
 be determined. 
 
 Fairbanks v. Bloomfield, 5 Duer, 434. 
 
 III. Change of Possession. 
 
 The change of possession where the mortgage is not filed, 
 must be open, actual, and public ; constructive or legal 
 change is insufficient. 
 
 Otis V. Sill, 8 Barb. 102, 
 Camp V. Camp, 2 Hill, 628. 
 Hanford v. Artcher, 4 Hill, 271. 
 Steele v. Benham, 84 N. Y. 634. 
 Crandall v. Brown, 18 Hun, 461. 
 
 The presumption of fraud, in case there is no actual 
 change of possession, is conclusive under the statute unless 
 the mortgage is duly filed. That presumption, however, is 
 one which may be repelled by evidence, where the condition 
 of filing has been complied with. 
 
 Frost V. Mott, 34 N. Y. 255. 
 
 As against an attaching creditor, a chattel mortgage is 
 absolutely void, unless it, or a true copy thereof, is filed in 
 the proper office. Or unless there was an immediate deliv- 
 ery of the property to the mortgagee, followed by an actual 
 and continued change of possession. 
 
 Siedenbach v. Riley (Ct. ot App.), 20 N. Y. St. 
 Rep. 124 ; s. c, III N. Y. 560. 
 
 Whether there was an actual and continued change of 
 possession, is a question for the jury. 
 
 Ibid. 
 
 Ford V. Williams, 24 N. Y. ^65. 
 Wood V. Lowry, 17 Wend. 492. 
 Stewart v. Slater, 6 Duer, 96. 
 
40 CHATTEL MORTGAGES. 
 
 A chattel mortgage is absolutely void as to creditors, un- 
 less the same is filed, or the possession of the property is 
 changed. 
 
 Clark V. Gilbert, 14 Week. Dig. 241. 
 
 Where a mortgagee takes actual possession and control of 
 the property, a failure thereafter to refile the mortgage is not 
 sufficient to defeat his title and possession of the property. 
 
 Simmons v. Osgoodby, 16 Week. Dig. 428. 
 
 So a temporary resumption of the possession by a mort- 
 gagor, is a badge of fraud, although open to explanation. 
 
 Look V. Comstock, 15 Wend. 241. 
 
 Possession taken by the mortgagee under a chattel mort- 
 gage, which is fraudulent against creditors, by reason of an 
 agreement permitting the mortgagor to deal in the property 
 for his own benefit is of no avail. The mortgage is still 
 fraudulent as against creditors. 
 
 Dutcher v. Swartwood, 15 Hun, 34. 
 
 Stimson v. Wrigley, 86 N. Y. 332. 
 
 Sperry v. Baldwin, 46 Hun, 120. 
 
 Quinn & Nolan Brewing Co. v. Hart, 48 Hun, 395. 
 
 Hauselt v. Harrison, 105 U. S. 401, distinguished. 
 
 Potts V. Hart, 99 N. Y. 168. 
 
 IV. What Interests may be Mortgaged. 
 
 In general it may be said that any property which is ca- 
 pable of absolute sale, may be mortgaged ; but such prop- 
 erty must have either an actual or potential existence, 
 otherwise the mortgage will have no validity. 
 
 Van Hozer v. Cory, 34 Barb. 12. 
 Gardner v. McEwen, 19 N. Y. 123. 
 Farmers' Loan and Trust Co. v. The Long Beach 
 Improvement Co., 27 Hun, 89. 
 
WHAT INTERESTS MAY BE MORTGAGED. 41 
 
 A chattel mortgage, which, after enumerating the goods 
 mortgaged, contained a clause in the following form, to-wit : 
 " And also all other goods, chattels, etc., which may be sub- 
 stituted for any similar property now appertaining to the 
 business of said firm, and belonging to said firm at said store 
 and shop, and which may be added by way of purchase or 
 exchange thereto, it being intended and declared that all 
 the property, stocky tools and fixtures, which may at any 
 time form part of, and belong to said business of said firm 
 of T. & Co., at the premises aforesaid, whether the same be 
 now in existence or hereafter created or acquired, shall be 
 and is included in, covered and conveyed by the foregoing 
 mortgage," is void as to creditors, on the ground that the 
 mortgage could not cover the after-acquired .property. 
 
 Carpenter v. Simmons, 28 How. 12. 
 
 A mortgage of the rights of a party of his interests in a 
 lease of land, together with all the oil wells, machinery and 
 structures thereon, and those to be placed thereon, if filed 
 in the office of the proper town clerk, operates to give con- 
 structive notice of the lien created by the instrument, and 
 such mortgage is valid, and is a lien upon wells subsequently 
 put down by assignees of the lease. 
 
 Kribbs v. Alford, 9 N. Y. St. Rep. 617; s. c, 45 
 Hun, 589. 
 
 A grant of crops to be thereafter sown by the owner upon 
 his land is valid, and the title thereto passes as soon as the 
 crops come into existence. 
 
 Nestell V. Hewitt, 19 Abb. N. C. 287. 
 Andrew v. Newcomb, 32 N. Y. 417. 
 
 In the case of Andrew v. Newcomb, supra, Denio, C. J., 
 
 said : " Crops to be raised, are an exception to the general 
 
 rule, that the title to property not in existence cannot be 
 
 aiifected, so as to vest the title when it comes into being. In 
 
 6 
 
42 CHATTEL MORTGAGES. 
 
 the case of crops to be sown, it vests potentially, from the 
 time of the executory bargain and actually as soon as the 
 subject arises." 
 
 A judgment debtor cannot make a valid mortgage after 
 the appointment of a receiver, as the receiver is vested with 
 all the title of the judgment debtor, and thereafter the 
 judgment debtor has no interest which can be made the 
 subject of a chattel mortgage. 
 
 Clark V. Gilbert, lo Daly, 318. 
 
 A chattel mortgage, upon the merchandise and stock in 
 trade of the mortgagor, expressed to include all "the in- 
 crease and decrease thereof," is wholly void. 
 
 Mittnacht v. Kelly, 5 Abb. (N. S.) 442. 
 
 V. Agreements which Render the Mortgage Void. 
 
 An agreement that a mortgagor may continue in posses- 
 sion and sell the goods for cash or on credit, and the ac- 
 counts, when sales are made on credit, to be transferred to 
 the mortgagee and applied on the debt, the accounts, how- 
 ever, only when they shall be collected ; held to be fraudu- 
 lent and void as to creditors, and for the reason that this 
 agreement, as to the accounts, enabled the mortgagor to sell 
 his entire stock on credit, and keep his other creditors at 
 
 bay. 
 
 City Bank of Rochester v. Westbury, 16 Hun, 458. 
 
 A chattel mortgage is fraudulent and void as to creditors, 
 where it was given with a tacit or express understanding 
 and arrangement, that the mortgagor may sell and dispose 
 of the mortgaged property, and apply the avails to his own 
 use. 
 
 Such an agreement may be inferred from the fact that 
 the mortgagor does, with the knowledge and assent of the 
 
AGREEMENTS WHICH RENDER MORTGAGE VOID. 43 
 
 mortgagee, so sell and dispose of the property and apply 
 the avails. 
 
 Griswold v. Sheldon, 4 N. Y. 581. 
 
 Edgell V. Hart, 9 N. Y'. 213. 
 
 Ford V. Williams, 13 N. Y. 577. 
 
 Russell V. Winne, 37 N. Y. 595. 
 
 Brackett v. Harvey, 91 N. Y. 214. 
 
 Potts V. Hart, 99 N. Y. 168. 
 
 Sales made and the moneys used by the mortgagor, and 
 with the knowledge and consent of the mortgagee, renders 
 the mortgage void. 
 
 Williston V. Jones, 6 Duer, 507. 
 
 Where property embraced in a chattel mortgage, is left in 
 the possession of the mortgagor, pursuant to an agreement 
 between him and the mortgagee, made at the time, that he 
 may go on with it and sell it so as to support his wife and 
 children, the mortgage is, by reason of the agreement, fraudu- 
 lent and void. 
 
 Marsden v. Vultee, 8 Bosw. 129. 
 
 A chattel mortgage given by a person in embarrassed 
 circumstances, although given for value, will be fraudulent 
 and void as against creditors, when it is made with the design 
 to defraud creditors, and the mortgagee knows that fact. 
 
 Anderson v. Hann, i Week. Dig. 367. 
 
 To render a chattel mortgage void under the statute, it is 
 only necessary that it should be designed to delay a single 
 creditor for a single day, in the collection of his debts. 
 
 It is suilficient to vitiate the mortgage that such a design 
 contaminated it, though mingled with other purposes. 
 
 Manning v. Reilly, 16 Week. Dig. 428. 
 
44 • CHATTEL MORTGAGES. 
 
 Fraud on the part of the mortgagor does not affect the 
 mortgagee unless he was a party or privy to it, and received 
 the mortgage with intent to hinder, delay or defraud credi- 
 tors, or had notice of the fraudulent intent of the mortgagor. 
 
 Murphy v. Moore, 23 Hun, 95. 
 
 If the mortgage be fraudulent, no subsequent act of the 
 mortgagee can make it valid. 
 
 Butcher v. Swartwood, is Hun, 34. 
 
 An agreement between the mortgagor and mortgagee of 
 chattels, that the former may retain possession and sell the 
 goods, and pay the proceeds over to the mortgagee, will not 
 render the mortgage fraudulent /^r se ; under such an agree- 
 ment the bona fides of the transaction become a question 
 of fact for the jury. 
 
 Dolson V. Saxton, 5 Week. Dig. 126. 
 
 After default in the payment of a mortgage, the mortga- 
 gor cannot thereafter charge the property by a second mort- 
 gage. A subsequent mortgagee would take no interest in 
 the property, and would have no right to redeem by offering 
 to pay the first mortgage. 
 
 Taylor v. Walter, 34 How. 385. 
 
 Porter v. Parmley, 43 How. 445 ; s.c. 52 N. Y. 185. 
 
 Where at the time of the execution of a chattel mortgage 
 upon a stock of merchandise, it is understood and agreed 
 that the mortgagor may go on and sell the stock, and use the 
 proceeds generally in his business, and the agreement is car- 
 ried out by permitted sales, the transaction is fraudulent in 
 law as against the creditors of the mortgagor. 
 
 Southard v. Banner, 72 N. Y. 424. 
 
AGREEMENTS WHICH DO NOT INVALIDATE. 45 
 
 VI. Agreements which do not Invalidate the Mort- 
 gage. 
 A mortgage is not fraudulent in law, from the mere fact 
 of its expressing a greater sum secured than the real amount 
 of the debt, which the mortgagor owes to the mortgagee. 
 
 A conveyance or assignment by a debtor of his personal 
 property upon trust, to sell and pay his debts to one or more 
 creditors, with a reservation to himself of any surplus there 
 may be, is in effect a mortgage, and if made to a creditor, is 
 valid. 
 
 Leitch V. Hollister, 4 N. Y. 211. 
 
 Dunham v. Whitehead, 21 N. Y. 131. 
 
 Brown v. Gutherie, no N. Y. 442. 
 
 The mere fact that a mortgagor is insolvent at the time of 
 the execution of a mortgage, is not sufficient to vitiate it. 
 
 Manchester v. Tibbetts, 19 N. Y. St. Rep. 302. 
 
 A provision in a chattel mortgage, that the mortgagor may 
 retain possession until the mortgagee deems himself insecure, 
 is valid. 
 
 Frost V. Mott, 34 N. Y. 255. 
 
 If a mortgage cover unfinished articles of manufacture, 
 and the mortgagor afterward adds labor and materials to 
 them, the mortgage covers the finished articles, both as 
 against the mortgagor and his creditors. 
 
 Dunning v. Stearns, 9 Barb. 630. 
 Frost V. Willard, 9 Barb. 440. 
 
 A chattel mortgage covering property then owned by the 
 mortgagor, and also property to be subsequently acquired by 
 the mortgagor, does not render invalid a mortgage upon the 
 property then owned by him. 
 
 Gardner v. McEwen, 19 N. Y. 123. 
 Van Heusen v. Radcliff, 17 N. Y. 580. 
 
46 CHATTEL MORTGAGES. 
 
 A chattel mortgage given by persons in possession of 
 property, although not the owners, but with the knowledge 
 and assent of the owners, is valid and binding upon such 
 owners. 
 
 Hayman v. Jones, 3 Week. Dig. 230. 
 
 Where a mortgagor, after the delivery of the mortgage, 
 gives his promissory note for the debt, the acceptance of 
 such note by the mortgagee is not a waiver of the mort- 
 gage security. 
 
 A creditor has a right to take as many securities as his 
 debtor is willing to give. 
 
 Wescott V. Gunn, 4 Duer, 107. 
 
 An agreement in a chattel mortgage that the mortgagor 
 will keep the property insured, and assign the policy to the 
 mortgagee as collateral security, and if he does not do so, 
 that the mortgagee may insure and add to the mortgage, is 
 valid. 
 
 Baltes V. Dobin, 67 Barb. 433. 
 
 A clause in a chattel mortgage, upon a stock of goods, 
 which purports to extend the lien of the mortgage over 
 after-acquired property, does not render the mortgage abso- 
 lutely void ; where there is no arrangement, permitting the 
 mortgagor to deal with the goods mortgaged, and no knowl- 
 edge of such dealing on the part of the mortgagee, and the 
 absence of any intent to defraud creditors is affirmatively 
 found. 
 
 Yates V. Olmstead, 56 N. Y. 632. This case is 
 qualified by the case of Brackett v. Harvey, post. 
 
 A chattel mortgage is not rendered void as to creditors 
 of the mortgagor, by a provision authorizing him to sell the 
 mortgaged property, and apply the proceeds of sales toward 
 the payment of the mortgage debt ; nor does an authority 
 to the mortgagor to sell on credit, taking good business 
 
AGREEMENTS WHICH DO NOT INVALIDATE. 47 
 
 paper, which the mortgagee agrees to accept and apply on 
 the debt, affect the vahdity of the mortgage. So also, per- 
 mission to use a portion of the proceeds of sales to pur- 
 chase other property does not vitiate the mortgage, where it 
 is coupled with a condition that the property so purchased 
 shall be brought in and subjected to the mortgage hen by a 
 renewal of the mortgage. 
 
 Brackett v. Harvey, 91 N. Y. 214. 
 
 A chattel mortgage made the debt payable as follows: 
 " The said principal sum and interest to be paid immedi- 
 ately after the expiration of five years from date, except in 
 case default should be made in the performance of the con- 
 ditions of a certain agreement this day executed by," etc. 
 This agreement provided that the debt should be paid in 
 monthly installments of $50 each ; held, that the mort- 
 gage was not invalidated by the failure to record or file the 
 agreement referred to. 
 
 Shuler v. Boutwell, 18 Hun, 171. 
 
 A lease which provides that the landlord may have a lien 
 upon the fixtures, etc., for any rent unpaid, is valid as be- 
 tween the parties, and the landlord may maintain an action 
 against the mortgagor to recover the same, when taken 
 from the premises by him. 
 
 Whited V. Hamilton, 15 Hun, 275. 
 
 Hop poles used in the raising of hops upon a farm, are 
 covered by a mortgage of the land, whether they are upon 
 the farm at the time of giving the mortgage, or are subse- 
 quently brought thereon. 
 
 Sullivan v. Toole, 26 Hun, 203. Citing 
 Gardiner v. Finly, 19 Barb. 317. 
 Rice v. Dewey, 54 Barb. 455. 
 
48 CHATTEL MORTGAGES. 
 
 In the case ol Hawkins v. Giles, 45 Hun,, 318, the defend- 
 ant leased to one C. a farm and seven cows from April i, 1883, 
 to April I, 1884, and agreed to furnish sufficient hay to keep 
 the cows to grass in 1883. C. agreed to pay $175 rent and 
 " to feed out all the fodder on said farm that is raised on 
 said farm, * * * and winter said stock (seven cows) 
 through to grass in the spring of 1884 on hay." 
 
 In December, 1883, the plaintiff had an execution against 
 C. under which about twenty-five tons of the hay grown upon 
 the farm in 1883 was sold, the plaintiff becoming the pur- 
 chaser. The defendant prevented the plaintiff from remov- 
 ing the hay, claiming that C. had left the farm without full)' 
 paying the rent ; that the hay was required to keep the cows 
 through to grass. Held, that the title to the hay was in C. 
 (the tenant) and was subject to sale on the execution against 
 him, and that the plaintiff was entitled to recover its value 
 from the defendant. Citing. 
 
 Johnson v. Crofoot, 53 Barb- 574. 
 
 Steflfin V. Steffin, 4 N. Y. Civ. Pro. Rep. 179. 
 
 McCombs V. Becker, 3 Hun, 342. 
 
 An agreement in a lease of farm premises, that the title 
 to personal property belonging to the lessee, shall vest in the 
 lessor as security for the rent, is valid, and is enforceable 
 against crops subsequently raised on the farm ; a purchaser 
 of such crops is chargeable with notice of the lessor's title 
 when the lease is filed in the proper town clerk's office. 
 
 Smith V. Taber, 46 Hun, 313. 
 
 In this case, the lease in question was made February 18, 
 1885, and was filed in the town clerk's office with chattel 
 mortgages July 24, 1885. In November or December, 1885, 
 the defendant, T., purchased the buckwheat sown on the 
 farm in June or July of 1885, of B., without actual notice of 
 S.'s claim at the market value for cash paid at the time. The 
 " lien clause " in the lease is as follows : " He (the tenant, 
 B.) also agrees that all the personal property on said land, or 
 
AGREEMENTS WHICH DO NOT INVALIDATE. 49 
 
 hereafter brought, on, shall be and the same hereby is, bound 
 to said S. (the landlord) for the faithful performance of all 
 the covenants contained in this lease, and as collateral secu- 
 rity for all the rent due and to become due for said land, and 
 for any and all sums now and hereafter to be due or owing 
 from said B. to said S.; and said B. also agrees that all said 
 personal property and the crops raised and to be raised on 
 said land, and the cows and all the increase thereof, shall be 
 bound, and hereby are bound to said S. as collateral security 
 for the faithful performance of all the covenants contained 
 in this lease, and for the payment of said rent due and to 
 become due and owing from said B. to S. for any cause what- 
 ever, and for this purpose said S. shall have the title to all 
 the personal property of whatever kind raised, made, pro- 
 duced, kept, put or used upon said farm, and he shall have 
 the right of possession thereof at any time, and such title 
 and right of possession is vested in said S. as collateral secu- 
 rity for the faithful performance of all the covenants con- 
 tained in this lease, including the payment of rent due, and 
 any and all sums of money owing to or to be hereafter due 
 and owing from said B. to said S." 
 
 Hardin, P. J., in delivering the opinion of the court, said : 
 " It must be assumed that the contract between the plaintiff 
 and ^his lessee was valid whether viewed exclusively as a 
 chattel mortgage, or as containing a ' lien clause ' to enable 
 the plaintiff to enforce the payment of the rent out of any 
 property of the tenant in and upon the premises. Treating 
 the filing of the lease containing the ' lien clause ' and the 
 security clause vesting the title to the property in the lessor, 
 as equivalent to an actual notice to the defendant, then it 
 must follow that the defendant is not a purchaser in good 
 faith without notice ; and hence he acquired only such rights 
 as were possessed by his vendor, as between the vendor 
 and the lessor. Here the defendant had constructive 
 notice through the notice filed in the proper town clerk's 
 office ; here it was stipulated that it should vest in S. (the 
 lessor) and as soon as it came into existence S. had the 
 right to it as it was vested in him to the extent that it was 
 
 7 
 
5° CHATTEL MORTGAGES, 
 
 needed to secure or pay his debt, and that stipulation was 
 valid. The language is apt and broad enough to create a 
 present lien as well as a present transfer of title to all prop- 
 erty mentioned." Citing 
 
 McCaffrey v. Woodin, 65 N. Y. 459. 
 
 Hale V. The Omaha Nat. Bank, 49 N. Y. 634. 
 
 Andrew v. Newcomb, 32 N. Y. 417. 
 
 Reynolds v. Ellis, 103 N. Y. 122. 
 
 Stevens v. Watson, 4 Abb. App. Cas. 302. 
 
 Johnson v. Crofoot, 53 Barb. 576. 
 
 Farmers' Loan & T. Co. v. Long B. Imp. Co., 27 
 
 Hun, 91. 
 Conderman v. Smith, 41 Barb. 404. 
 Jones on Mortgages, 115. 
 Harmon on Chattel Mortgages, 44. 
 Hawkins v. Giles, 45 Hun, 318. 
 Dresser v. United F. Ins. Co., 45 Hun, 302. 
 Betsinger v. Schuyler, 46 Hun, 348. 
 
 In the case last cited, Betsinger v. Schuyler, a farm lease 
 contained the following provision : " That the party of the 
 second part shall and will during the continuance of the 
 term, feed out upon said premises all hay, straw, cornstalks 
 and fodder, that may be raised or produced on said premises 
 or any pai-t thereof, * * * that all the products of the 
 farm herein demised, and of the live stock stipulated to be 
 kept thereon, that shall be raised or made thereon in each 
 year during the continuance of the term, shall be and re- 
 main the property of the party of the first part, * * * 
 until the rent of such year shall have been fully paid ; and 
 that the party of the second part, * * * shall have no 
 right to sell or dispose of any such products, but shall hold 
 and possess the same simply as the agent of the party of 
 the first part, * * * and not otherwise, until such rent 
 shall have been fully paid." //i?/i!/(Follett, J., dissenting), 
 that this provision was, in effect, a chattel mortgage ; and 
 that as the lease had not been filed in the town clerk's 
 office, it was void as to subsequent mortgagees in good 
 faith. 
 
AGREEMENTS WHICH DO NOT INVALIDATE. 51 
 
 In the case of Brown v. Guthrie, no N. Y. 435, one M. 
 and defendant entered into a contract by which it was 
 agreed that, in consideration of M.'s executing to defendant 
 his notes for $2,400, secured by a chattel mortgage on all 
 his goods and chattels, defendant would cancel certain notes 
 held by him against M. amounting to $980.78 ; loan him 
 $600 and pay debts of his to the amount of $619.21, to such 
 creditors as M. should thereafter designate. It was also 
 agreed, M., as the agent of the plaintiff, should be allowed 
 to sell at public auction the goods on credit, defendant to 
 receive all cash payments and notes taken on such sale, re- 
 tain out of the same the amount of M.'s notes, and pay over 
 tt) him any surplus ; defendant to be allowed $200 for his 
 services. As part of the same transaction, M. executed the 
 notes and chattel mortgage, which, however, did not cover 
 all his personal property, and defendant cancelled the notes 
 held by him ; the creditors of M., to whom the payment was 
 to be made were also designated. Defendant subsequently 
 advanced $600 and paid the debts as agreed. 
 
 Plaintiff O'M., as sheriff", under an attachment in an ac- 
 tion by plaintiff" B. against M., levied on the mortgaged 
 property. Defendant thereupon took and sold the same 
 under his mortgage. In an action for an alleged conversion, 
 the referee found that there was no fraud, in fact, as against 
 M.'s creditors in the transaction. Held, that it was not 
 fraudulent as matter of law, and the action was not main- 
 tainable ; that said transaction could not be considered as a 
 general assignment by an insolvent debtor, and so void be- 
 cause it reserved to him a possible surplus at the expense 
 of unpaid creditors and a right to subsequently make pref- 
 erences ; as it had none of the elements of a trust, but was 
 simply a transfer by chattel mortgage, the consideration for 
 which was evidenced and settled by the outside agreement ; 
 that the provision for a sale on credit was made harmless by 
 the stipulation that defendant should take the credits as cash. 
 
 The material and essential characteristic of a general as- 
 signment, is the presence of a trust, the assignee taking title, 
 
52 CHATTEL MORTGAGES. 
 
 not as absolute owner, but merely as trustee for the per- 
 formance of trust duties. 
 
 A provision in a chattel mortgage, giving-a mortgagor the 
 privilege to sell the property mortgaged for cash, or on credit, 
 the mortgagor to apply the proceeds of such sales upon the 
 debt secured by said mortgage, and also giving to the mort- 
 gagor the right to replenish said stock, the stock so pur- 
 chased to be applied upon said mortg'age is not per se fraud- 
 ulent as against the creditors of the mortgagor. 
 
 The relation in such case given to the mortgagor, and 
 taken by him, is that of agency for the mortgagee, in making 
 the sales, and may be so treated as against the creditors of 
 the mortgagor. 
 
 Kerr v. Dildine, 6 N. Y. St. Rep. 163. Citing 
 Brackett v. Harvey, 91 N. Y. 214. 
 Sirais V. Hodge, 21 N. Y. St. Rep. 955. 
 
 Where the mortgagor is given permission to sell the 
 goods for cash and pay the proceeds over to the mortgagee, 
 the funds become at once the funds of the mortgagee, and 
 the law applies the same upon the mortgagee's indebtedness, 
 whether the same is ever paid over to the mortgagee or not. 
 
 Smith V. Cooper, 27 Hun, 567. 
 Ellsworth V. Phelps, 30 Hun, 646. 
 Potts V. Hart, 99 N. Y. 168. 
 Preston v. Southwick, 42 Hun, 293. 
 Sparry v. Baldwin, 46 Hun, 120. 
 
 Where a mortgagor mixes articles covered by a mortgage 
 with those subsequently acquired, so that they cannot be 
 distinguished, such confusion of property does not render 
 the mortgage invalid as to such articles as can be identi- 
 fied. 
 
 Caring v. Richmond, 28 Hun, 25. 
 
 Where an agreement is made that the mortgagor may sell 
 mortgaged goods, and apply the proceeds, upon the mortgage, 
 a subsequent judgment debtor is entitled to an accounting 
 
AGREEMENTS WHICH DO NOT INVALIDATE. 53 
 
 of such sales, and to have the amount applied to reduce the 
 mortgage debt. 
 
 Ellsworth V. Phelps, supra. 
 
 A chattel mortgage duly filed, is valid as against a livery- 
 stable keeper, for the board of a horse, until after he shall 
 serve the notice required by chapter 498, Laws of 1872. 
 
 Jackson v. Kasseall, 30 Hun, 231. 
 
 See chapter 145, Laws of 1880. 
 
 See Corning v. Ashley, 21 N. Y. St. Rep. 703. 
 
 A chattel mortgage is valid, which provides that the mort- 
 gagor of articles purchased, might manufacture such articles, 
 and sell the same, and turn the proceeds over to the mort- 
 gagee. 
 
 Caring v. Richmond, 22 Hun, 369. 
 
 When a purchaser has knowledge of any fact sufficient to 
 put him upon inquiry as to the existence of some right or 
 title in conflict with that he is about to purchase, he is pre- 
 sumed, either to have made the inquiry and ascertained the 
 extent of such prior right, or to have been guilty of a de- 
 gree of negligence, equally fatal to his claim to be considered 
 a bona fide purchaser. The presumption, however, is a mere 
 inference of fact, and may be repelled by proof that the 
 purchaser failed to discover the prior right, notwithstanding 
 the exercise of due diligence on his part. 
 
 Williamson v. Brown, 15 N. Y. 354. 
 Mack V. Phelan, 92 N. Y. 25. 
 
 Merger. — A chattel mortgage given as collateral security 
 for the payment of a note, is not merged or extinguished, by 
 a judgment entered upon said note. The debt is not yet 
 satisfied. 
 
 The note may have been cancelled, but the debt was not • 
 and until that is done, it seems that all collateral securities, 
 
54 CHATTEL MORTGAGES. 
 
 whether upon real or personal property, should be allowed 
 to stand. 
 
 Butler V. Miller, i N. Y. 496. 
 
 Hill V. Beebe, 13 N. Y. 556. 
 
 Carpenter v. Longan, 16 Wall. 271. 
 
 Nor does it affect the right of the indorsee to enforce the 
 mortgage or deed of trust security, that the note has been 
 merged in a judgment ; so long as the judgment remains 
 unsatisfied, the debt is unpaid and the principal remaining; 
 the mortgage lien is not merged, but is transferred from the 
 note to the judgment. 
 
 Ober V. Gallagher, 93 U. S. 199. 
 Colebrooke on Collateral Securities, 198. 
 
 VII. Of Mortgages upon Fixtures. 
 Fixtures are articles which have an existence independent 
 of a freehold and are afterward annexed to, and become a 
 part of it. 
 
 Hamilton v. Austin, 36 Hun, 142. 
 
 There are several tests that will aid in the determination 
 of the question as to what are fixtures. As to machinery, 
 the tests to be applied are, whether the annexation of the 
 property to the freehold is of a permanent character. An- 
 other is adaptability to the use of the freehold. 
 
 And yet another, is the intention of the party at the time 
 of making the annexation. 
 
 Phoenix Mills v. Miller, 4 N. Y. St. Rep. 787; s. c, 
 
 42 Hun, 654. Citing 
 Potter V. Cromwell, 40 N. Y. 287. 
 Voorhees v. McGinnis, 48 N. Y. 282. 
 
 Mere intention to make an article a fixture, without annex- 
 ation to the realty, will not make it one ; but when such in- 
 
OF MORTGAGES UPON FIXTURES. 55 
 
 tention does exist in the mind of the owner of the land and of 
 the article, then the slightest affixing will make it a part of 
 the freehold ; such intention often becomes the controlling 
 fact in determining the question whether in law, the article 
 in dispute is, or is not, a fixture. 
 
 Hart V. Sheldon, 34 Hun, 38. 
 
 Between vendor and vendee, the mode of annexation is 
 not the controlling test. The purpose of the annexation, 
 and the intent with which it was made, is, in such cases, the 
 most important consideration. The permanency of the at- 
 tachment does not depend so much upon the degree of physi- 
 cal force with which the thing is attached, as upon the 
 motive and intention of the party in attaching it. If the 
 article is attached for temporary use, with the intention of 
 removing it, a mortgagee cannot interfere with its removal 
 by the mortgagor. 
 
 If it is placed there for the permanent improvement of 
 the freehold, he may. 
 
 McRea v. Central Nat. Bank of Troy, 66 N. Y. 495. 
 
 The courts of this State accord great efficiency to a mort- 
 gagor's agreement, that articles which by attachment would 
 become fixtures, shall remain chattels so as to give effect to a 
 chattel mortgage of them, as against subsequent mortgagees 
 and purchasers of the land. They even hold that a chattel 
 mortgage executed in view that the chattels are about to be 
 annexed to the realty, is sufficient evidence of the intention 
 and agreement of the parties, that they are to retain their 
 character as personal property. 
 
 Ford V. Cobb, 20 N. Y. 344. 
 Sisson V. Hibbard, 75 N. Y. 542. 
 Kinsey v. Bailey, 9 Hun, 452. 
 
 If a chattel mortgage be executed before the mortgage on 
 the land, the mortgagee of the land having notice of the 
 
56 CHATTEL MORTGAGES. 
 
 prior incumbrance, the act of the parties in treating the 
 property as personal, would as between them, make it so. 
 
 Griffin v. Allen, not reported, but cited in Clinton's 
 Digest. 
 
 Where an engine was built for a mill, and before it left 
 the owner's shop, a mortgage was taken on it, with a stipu- 
 lation that it might be removed at any time, it was held that 
 the engine continued to be personal property, as against a 
 previous mortgage of the land. 
 
 Tifft V. Horton, 53 N. Y. 377. 
 
 In the case of Tifft v. Horton, plaintiff sold to B. an en- 
 gine and boiler to be put up in an elevator owned by the 
 latter. Notes were given for a portion of the purchase- 
 money, secured by a chattel mortgage upon the property 
 sold, executed before delivery, which mortgage contained a 
 clause stating that the engine and boiler should be and re- 
 main personal property until the notes were paid, notwith- 
 standing the manner in which they should be placed in 
 the elevator ; and in case of failure to pay, plaintiff was 
 authorized to enter the elevator and remove them. They 
 were placed upon a foundation outside of the elevator 
 and an engine house built over them. Upon foreclosure of 
 mortgages upon the premises executed before this purchase, 
 defendant became the purchaser. 
 
 The notes not being paid at maturity, plaintiff demanded 
 the engine and boiler, and upon refusal of defendant to de- 
 liver, brought this action for conversion. It was stipulated 
 between the parties that the sale on foreclosure should not, 
 in any manner, change the legal rights of the plaintiff. 
 
 Held, that defendant acquired no lien on the property in 
 question by virtue of the mortgage, and that plaintiff was 
 entitled to recover. 
 
OF MORTGAGES UPON FIXTURES. 57 
 
 If personal property, such as machinery already subject 
 to a chattel mortgage, be affixed to the realty, with the assent 
 of the mortgagee, it becomes a question whether the chattel 
 mortgage lien is lost as against an existing mortgagee of the 
 realty, or as against subsequent purchasers and mortgagees 
 of the realty, or creditors who subsequently obtain liens 
 upon it. The intention and agreement of the parties has 
 much to do with the determination of the question, whether 
 chattels annexed to the realty retain their character as per- 
 sonal property. 
 
 Sheldon v. Edwards, 35 N. Y. 279. 
 Potter V. Cromwell, 40 N. Y. 287. 
 
 In the case of Sisson v. Hibbard, supra, an engine and 
 boiler were sold to one H., the vendors taking thereon a 
 chattel mortgage to secure the purchase-price. At the 
 time of the execution of the mortgage, it was mutually 
 agreed that the mortgage should be valid, notwithstanding 
 any annexation to the premises. Default having been 
 made in the payment of the mortgage, H. re-transferred 
 the engine and boiler to the vendors; but they permitted 
 the same to remain on the premises. The premises were 
 sold upon an execution against H.; it was held, that the en- 
 gine and boiler remained personal property. 
 
 Machinery of a cotton mill, merely fastened to the floor 
 by nails or screws, or held in position by cleats, to keep it in 
 position is not a part of the realty, and would pass by a 
 chattel mortgage. 
 
 Godard v. Gould, 14 Barb. 662. 
 
 McEntee v. Scott, 2 Thompson & Cook, 284. 
 
 A less stringent rule obtains between landlord and tenant 
 than between grantor and grantee. The law presumes in 
 the case of a tenant, that his interest is temporary only, and 
 that he affixes only for his own enjoyment during his term, 
 and not to enhance the value of the estate ; hence it per- 
 mits annexations made by him to be detached during his 
 8 
 
58 CHATTEL MORTGAGES. 
 
 term, if done without injury to the freehold, and in agree- 
 ment with known usages. 
 
 Livingston v. Sulzer, 19 Hun, 380. 
 Tifft V. Horton, supra. 
 
 Where chattels are annexed to the real estate, with the 
 intent that they shall not thereby become a part of the free- 
 hold, as a general rule, such intent will control ; to preserve 
 their character as personalty, a concurrent intent on the part 
 of a prior mortgagee of the real estate is not necessary, and 
 neither a prior or a subsequent mortgagee of the land can 
 claim as subject to the lien of his mortgage, chattels brought 
 on or affixed to the land under an agreement between the 
 owner of the fee and the owner of the chattels, that the 
 character of the latter as personal property is not to be 
 changed, and that they are subject to a right of the owner 
 to remove them. 
 
 Tifft V. Horton, supra. 
 
 The owner of land may reimpress the character of per- 
 sonalty on chattels, which by annexation to the land have 
 become fixtures, according to the ordinary rule, provided 
 only that they have not been so incorporated, as to lose 
 their identity; the reconversion does not interfere with the 
 rights of creditors or third persons. 
 
 Tyson v. Post, 108 N. Y. 221. 
 
 But by agreement for the purpose of protecting the 
 rights of vendors of personalty, or of creditors, chattels may 
 retain their character as chattels, notwithstanding their an- 
 nexation to the land in such a way, as in the absence of an 
 agreement, would constitute them fixtures. 
 
 Ibid. 
 
 Chairs fastened to a floor, by iron screws 2J inches in 
 length, are not deprived of their character as personal prop- 
 
HOW AND BY WHOM THE VALIDITY, ETC. 59 
 
 erty as between the parties, and a mortgage given thereon 
 to secure the manufacturer is vaHd. 
 
 Metropolitan Concert Co, v. Sparry, 9 N. Y. St. 
 
 Rep. 342; s. c, 44 Hun, 630. Citing 
 Husted V, Ingraham, 75 N, Y, 251. 
 
 Looms in a woolen factory connected with the motive power 
 by leather bands, and not otherwise annexed to the building, 
 than by screws holding them to the floor, which keep them 
 steady while working, and which could be removed without 
 injury to the freehold, are chattels. 
 
 Murdock v. Gifford, 18 N. Y. 28. 
 
 The question of fixtures is generally one of intention. 
 
 McLaughlin v. Lester, 4 N. Y. St. Rep, 852; s. c, 
 42 Hun, 657. 
 
 A mortgage executed upon real estate, which premises 
 were used as a flouring mill, and which covered, " append- 
 ages of every description now used in and about the same," 
 held^ that certain articles in the mill, viz. : weighing scales, 
 scoops, mill picks, and a small hand cornsheller, were cov- 
 ered by the mortgage under the term appendages. 
 
 Miller v. Hart, 32 Hun, 639. 
 
 VIII. How AND BY Whom the Validity may be Con- 
 tested. 
 
 If an execution creditor desires to contest the validity of 
 a mortgage, he may treat it as a nullity, and indemnify the 
 sheriff and let the mortgagee bring an action against the 
 sheriff for the value of the property, or to reclaim its posses- 
 sion, and in such action the mortgagee will succeed in case 
 the mortgage is declared to be fraudulent. 
 
6o CHATTEL MORTGAGES. 
 
 Rinchey v. Stryker (Ct. App.), 26 How. 75. 
 Delaware v. Ensign, 21 Barb. 85. 
 Frost V. Mott, 34 N. Y. 452. 
 
 An assignee in bankruptcy may assert the invalidity of a 
 mortgage, and by reason of omission to file, or by reason of 
 the mortgagor's being allowed to deal with it. 
 
 Brackett v. Harvey, 91 N. Y. 214. 
 
 An action to set aside a mortgage as fraudulent, may be 
 maintained by a subsequent mortgagee of the same prop- 
 erty, and in such an action, either legal or equitable relief 
 may be given as the proofs on the trial, and the allegations 
 in the complaint demand. 
 
 Anderson v. Hunn, 5 Hun, 79. 
 
 So also a partner, has such a lien on the partnership prop- 
 erty, as entitles him to a judgment setting aside fraudulent 
 sales or incumbrances made by his copartner. 
 
 Wade V. Rusher, 4 Bosw. 537. 
 
 A bona fide purchaser of mortgaged property, without 
 notice of the lien, may also show its fraudulent character. 
 
 Thomas on Mortgages, 490. 
 
 A plaintiff in a judgment and execution, who purchases 
 merely the interests of the defendants in the property, sold 
 on the execution, is not estopped from questioning the valid- 
 ity of a prior chattel mortgage given by the defendants on 
 such property. 
 
 Carpenter v. Simmons, 28 How. 12. 
 
 The general creditors of a mortgagor of chattels, have no 
 right to assail a mortgage, or other conveyance of property 
 
HOW AND BY WHOM THE VALIDITY, ETC. 6i 
 
 made by him, as invalid, until they have secured a lien 
 thereon by levy under a judgment and execution, or by 
 some other method acquired a legal or equitable interest in 
 the property. 
 
 Southard v. Banner, 72 N. Y. 424. 
 Reynolds v. Ellis, 103 N. Y. 123. 
 Sullivan v. Miller, 106 N. Y. 641. 
 
 A creditor who seeks to impeach a chattel mortgage, upon 
 the ground of the continuance in possession of the mortga- 
 gor, is bound to show he was a creditor during the time that 
 the possession continued. 
 
 Williston V. Jones, 6 Duer, 504. 
 
 An action may be maintained to set aside a chattel mort- 
 gage as fraudulent, by an assignee for the benefit of creditors 
 or other trustee. 
 
 Hangen v. Hachmeister, 53 N. Y, Supr. Ct. 533. 
 Southard v. Banner, 72 N, Y. 424. 
 Reynolds v. Ellis, 103 N. Y. 123, 
 
 A purchaser of property under an execution, may attack 
 a previous usurious lien thereon. 
 
 Knickerbocker Ins. Co. v. Hill, 3 Hun, 577. Citing 
 Cavan v, Kelly, 3 Alb. L. J. 373. 
 Dix V. Van Wyck, 2 Hill, 522, 
 Thompson v. Van Vetchen, 27 N. Y. 568. 
 
 Purchasers under an execution sale, may set up any de- 
 fense to a lien prior to that under which the execution sale 
 was had. 
 
 Nichols V. Iremonger, 3 Hun, 609. 
 
62 CHATTEL MORTGAGES. 
 
 CHAPTER IV. 
 
 OF THE DISPOSITION AND SALE OF THE MORTGAGED 
 PROPERTY. 
 
 I. Under execution. III. By the mortgagor's agent. 
 
 II. By the mortgagor. IV. By the mortgagee. 
 
 I. Under Execution. 
 
 It is well settled, that under our statutes, a mortgagor of 
 goods has no property in them subject to levy and sale on 
 execution, unless he has a right to the possession for a defi- 
 nite time ; and that a mortgagor in possession of the chat- 
 tels after forfeiture, and when the mortgagee may take pos- 
 session at his pleasure, has no right which is subject to sale 
 on execution. It is equally well settled that a mortgagor 
 of chattels in possession with the right of possession for a 
 definite period, has an interest which may be sold on execu- 
 tion. 
 
 Goulet V, Asseler, 22 N, Y. 228. 
 
 Hall V. Samson, 19 How, 481. 
 
 Rodman v. Hendricks, i Sandf. 32, 
 
 Where, by the terms of a chattel mortgage, the mortgagee 
 has an immediate right of possession, the property cannot 
 be levied upon and sold under an execution against the 
 mortgagor. A mere chose in action, which, unless united to 
 a right of possession for a definite period, can never be the 
 subject of a levy and sale under execution. 
 
 Hull V. Carnley, 11 N. Y. 501. 
 
 A mortgage of personal property, in all cases, vests the 
 legal title in the mortgagee, and when by the terms of the 
 
UNDER EXECUTION. 63 
 
 mortgage, he has an immediate right to the possession, al- 
 though the possession may not Iiave been changed, he is, 
 in law, the absolute owner ; and it is merely as his bailee, and 
 by his sufferance, that the mortgagor retains the possession. 
 
 The latter has no interest that is bound by or can be sold 
 under execution. 
 
 Stewart v. Slater, 6 Duer, 96. 
 
 While personal property, covered by a chattel mortgage, 
 remains in the possession of the mortgagor, and its condi- 
 tions are unbroken, the mortgagor's interest is subject to 
 levy and sale upon execution, and the purchaser obtains 
 the same title as that of which the mortgagor was possessed. 
 
 Hamill v. Gillispie, 48 N. Y. 556. 
 
 Where a chattel mortgage contains a provision authoriz- 
 ing the mortgagee at any time before default, if he should 
 deem himself insecure, to take possession and sell, this 
 gives the mortgagor the right of possession in the meantime, 
 and until the mortgagee exercises such power, the right of 
 possession remains in the mortgagor, and his right, title and 
 interest, may be levied upon by virtue of an attachment; 
 but if before judgment, in the attachment suit, the mort- 
 gagor exercises his right of taking possession, the possessory 
 fight of the mortgagor terminates, and the authority of the 
 sheriff ends with the interest of the debtor. The property 
 cannot be subsequently sold under an execution in the at- 
 tachment suit. 
 
 Hall V. Samson, 35 N. Y. 274. Reversing 23 How. 
 
 84. 
 Rich V. Milk, 20 Barb. 616. 
 Chad wick v. Lamb, 29 How. 518. 
 
 The interest of a mortgagor in possession, under a chattel 
 mortgage payable on demand, until such demand is made, 
 
64 CHATTEL MORTGAGES. 
 
 is to be deemed an interest for a definite period, and, therefore, 
 subject to a levy under execution against such mortgagor. 
 
 Livor V. Orser, 5 Duer, 501. 
 Hathaway v. Brayman, 42 N. Y. 322. 
 Lyman v. Bowe, 66 How. 481 ; s. c, 5 N. Y. Civ. 
 Pro. Rep. 157. 
 
 The interest of a mortgagor of personal property, even 
 before forfeiture, where he has not the right of possession 
 for a definite period, is but a right of redemption merely, 
 which is not the subject of levy and sale upon execution. 
 
 Mattison v. Baucus, i N. Y. 295. 
 
 The possessory right, before default, can be sold under 
 attachment as well as under execution. 
 
 Fairbanks v. Bloomfield, 5 Duer, 434. 
 
 It is well settled, that after a mortgagee of chattels has 
 taken possession of the mortgaged property, by virtue of a 
 power in the mortgage, the mortgagor has no remaining in- 
 terest in it which can be seized and sold under execution, 
 although the mortgage debt is not due. 
 
 Nichols V. Mead, 2 Lans. 223. 
 Hale V. Sweet, 40 N. Y. 103. 
 Porter v. Parmley, 52 N. Y. 188. 
 Powers V. Elias, i N. Y. St. Rep. 248. 
 
 A sale by the sheriff of the entire property, without men- 
 tioning any mortgage, conveys a title subject to the mortgage, 
 if the mortgage be a valid lien. 
 
 Porter v. Parmley, supra. 
 White V. Cole, 24 Wend. 117. 
 
 Where one bids off property of a judgment debtor, at 
 sheriff's sale, embraced in a chattel mortgage previously exe- 
 
UNDER EXECUTION. 65 
 
 cuted by such debtor, the sale being subject to such mort- 
 gage, and subsequently purchases and takes an assignment 
 of the mortgage, this will not operate as a payment of the 
 mortgage, and if the mortgage has not been paid or fore- 
 closed, nor any power contained in it exercised at the time 
 of its transfer, it will be a valid, subsisting, unsatisfied mort- 
 gage, and no fraud can be imputed to the assignee in repre- 
 senting and claiming that it is unpaid. 
 
 Brown v. Rich, 40 Barb. 28. 
 
 Property in the possession of the mortgagor, even after 
 default, may be levied upon and sold under a tax warrant. 
 
 Hersee v. Porter, 100 N. Y. 403. 
 
 In an action against a sheriff, for goods taken on execu- 
 tion, where the plaintiff claimed under a prior mortgage 
 executed by the judgment debtor, held, that the sheriff 
 might show the mortgage as usurious as a defense to the 
 action. 
 
 Dix V. Van Wyck, 2 Hill, 572. 
 
 Upon default of the mortgagor to pay the mortgage debt, 
 the mortgagee becomes the absolute owner of the mortgaged 
 chattels, and in the absence of any special agreement chang- 
 ing the relation, the possession of the mortgagor after that 
 time is that of mere naked bailee. 
 
 Hersee v. Porter, 100 N. Y. 408. 
 
 A sheriff taking possession of mortgaged chattels under 
 execution, must sell the same in mass, and subject to the lien ; 
 the property cannot be sold and scattered all over the 
 country in hostility to the lien of the mortgage. 
 
 Manning v. Monaghan, 23 N. Y. 545. 
 9 
 
66 CHATTEL MORTGAGES. 
 
 In this case, Comstock, C. J., in delivering the opinion of 
 the court, said : " The property was dispersed in every di- 
 rection as effectually beyond the plaintiff's reach, as if it had 
 been thrown into the sea. It would seem too plain for dis- 
 cussion that all persons knowingly instrumental in the wrong, 
 ought to be answerable for every wrong attended with loss 
 and damage. The existence of a mortgage upon personal 
 estate may not prevent creditors from seizing and selling it 
 to satisfy their just demands. But an attempt to sell in con- 
 travention of the lien, is an attempt to do a wrong and inflict 
 a loss." 
 
 "An actual injury may or may not result, according to the 
 circumstances. If it does result, the logical consequence is, 
 that an action will lie founded on the special facts." In this 
 case the mortgage covered certain household furniture. A 
 receiver was appointed under a judgment against the mort- 
 gagor, who caused the mortgaged goods to be sold at auction. 
 The goods were bid off by different persons, in parcels, and 
 scattered beyond the reach of the mortgagee. 
 
 Where personal property consisting of several articles is 
 sold on fi. fa., subject to a chattel mortgage, the whole ought 
 to be sold in one parcel. 
 
 Tifft V. Barton, 4 Denio, 171. 
 
 II. By the Mortgagor. 
 
 Section 571 of the Penal Code provides as follows: 
 " A person who, having theretofore executed a mortgage 
 of personal property, or any instrument intended to operate 
 as such, sells, assigns,exchanges, secrets or otherwise disposes 
 of any part of the property, upon which the mortgage or 
 other instrument is at the time a lien, with intent thereby to 
 defraud the mortgagee, or a purchaser thereof, is guilty of a 
 misdemeanor." 
 
 3 Revised Statutes, 978, chapter 73. 
 Laws of 187 1, chapter 77. 
 
BY THE MORTGAGOR'S AGENT. 67 
 
 While mortgaged property remains in the possession of 
 the mortgagor, and the condition of the mortgage is unbroken, 
 he has an interest subject to his control and disposition. 
 
 He can sell and deliver such title as remains in him. 
 
 The purchaser will, in that case, take title subject to the 
 lien of the mortgage, whether its existence was ascertained 
 by the purchaser or not, or whether the mortgagor mentions 
 or omitted to mention it. 
 
 Hamill v. Gillespie, 48 N. Y. 559. 
 
 Where a mortgagor causes the goods, subject to the chat- 
 tel mortgage, to be sold before it becomes due, in parcels to 
 various purchasers, and delivers them accordingly not sub- 
 ject to the mortgage, but in hostility to it, the auctioneer 
 who makes the sale is liable in damages to the mortgagee. 
 
 Tarbel v. Bradley, 7 Abb. N. C. 286. 
 
 An agreement that the mortgagor may dispose of the 
 goods for cash and bring the money to the mortgagee, 
 the latter holding the title until such disposition shall be 
 made, may possibly be sincere and without fraud. The law 
 does not, therefore, condemn it absolutely, but submits the 
 question of good faith to the jury. 
 
 Ford V. Williams, 24 N. Y. 365. 
 
 Where property is left with the mortgagor, and he disposes 
 of it as his own, it is fraudulent. 
 
 Divver v. McLaughlin, 2 Wend. 596. 
 McLachlan v. Wright, 3 Wend. 348. 
 
 III. By the Morgagor's Agent. 
 
 Where the mortgagor of chattels, in possession after de- 
 fault in the payment of the mortgage debt, fraudulently 
 
68 CHATTEL MORTGAGES. 
 
 delivered them to a third person for sale, representing that 
 they were his property, and the third person as agent for the 
 mortgagor, sells the chattels, such third person is liable to 
 the mortgagee for the value thereof, notwithstanding he 
 acted in good faith, believing that the chattels were the 
 property of the mortgagor, and paid the proceeds of the sale 
 which he made, over to the mortgagor, without reward for 
 his services. The agent in a fraudulent disposition of the 
 property of another — not being money or negotiable 
 paper — is liable therefor to the owner, although he acted in 
 good faith, without interest or reward, and in the belief that 
 his principal is the owner. 
 
 He who intermeddles with personal property, not his own, 
 must see to it that he is protected by the authority of one 
 who is himself by ownership, or otherwise, clothed with the 
 authority he attempts to confer. 
 
 Dudley v. Hawley, 39 N. Y. 441. Citing 
 Anderson v. Nicholas, 5 Bosw. 130. 
 Everett v. Coffin, 6 Wend. 609. 
 Spencer v. Blackman, 6 Wend. 167. 
 Williams v. Merle, 1 1 Wend. 80. 
 
 Whoever deals with an agent, constituted for a special pur- 
 pose, deals at his peril, when the agent passes the precise 
 limits of his power. If the owner loses his property, or if it 
 is sold or pledged without his consent, by one who has a 
 qualified possession of it for a specific purpose, the owner 
 can follow and claim it in the hands of any person however 
 innocent. 
 
 Wooster v. Sherwood, 25 N. Y. 287. Citing 
 
 2 Kent's Com. 621. 
 
 Saltus v. Everett, 20 Wend. 267. 
 
 Brown v. Peabody, 3 Kern. 121. 
 
 The purchaser of personal property, upon which there is a 
 valid chattel mortgage, who consumes or sells a part of the 
 property so that what remains does not produce sufficient 
 
BY THE MORTGAGEE. 69 
 
 to satisfy the mortgage debt, may be held personally liable 
 for the deficiency. 
 
 Beers v. Waterbury, 8 Bosw. 296. 
 
 IV. By the Mortgagee. 
 
 Where a mortgagor of chattels is in default, the mortgagee 
 has a right to take the property into his possession and dis- 
 pose of it at his pleasure. And if, after forfeiture, the mort- 
 gagee sells the property to a third person with the consent 
 of the mortgagor, this will be equivalent to a formal foreclos- 
 ure of the equity of redemption. 
 
 Talman v. Smith, 39 Barb. 390. 
 
 Upon default in the payment of a chattel mortgage, the 
 title to the mortgaged property becomes absolute in the 
 mortgagee, and thereafter the mortgagor has only an equity 
 of redemption in such property. 
 
 Parshallv. Eggert, 54 N. Y. 18. 
 Judson V. Easton, 58 N. Y. 664. 
 Bragelman v. Daue, 69 N. Y. 69. 
 Noyes v. Wyckoff, 30 Hun, 466. 
 Duff us V. Bangs, 43 Hun, 52. 
 King V. Walbridge, 48 Hun, 470. 
 
 To bar such right of redemption, there must be a sale of 
 the mortgaged property, of which the mortgagor has notice 
 
 A private sale, without notice, does not bar or foreclose the 
 equity of redemption, notwithstanding the mortgage author- 
 izes a private or public sale of the property. 
 
 Ballou V. Cunningham, 4 Lans. 74. 
 
 The cases of Chamberlain v. Martin, 43 Barb. 607, and 
 Huggins v. Fryer, i Lans. 276, hold however, that under 
 
70 CHATTEL MORTGAGES. 
 
 such circumstances, where the mortgage contains what is 
 known as the danger clause, that the mortgagee may take 
 possession of such property before the debt falls due, and 
 sell the same without making a demand for payment, and 
 without giving personabnotice of sale to the mortgagor, and 
 that the right of redemption is cut off by such sale. 
 
 A mortgagee of chattels whose title has become absolute, 
 is not bound to foreclose his mortgage ; to extinguish the 
 equity of redemption, he should do so. 
 
 Taylor v. Walter, 34 How. 385. 
 Elder V. Rouse, 15 Wend. 218. 
 
 And such equity of redemption can be extinguished only 
 by an action to foreclose, either legal or equitable, or by a 
 sale under the power contained in the mortgage. Such sale 
 must be a fair and bona fide sale. 
 
 Stoddard v. Denison, 38 How. 301. 
 
 Porter v. Parmley, 52 N. Y. 187. 
 
 Cutler V. The James Goold Co., 43 Hun, 516. 
 
 King V. Van Vleck, 109 N. Y. 367. 
 
 The mortgagee may purchase the chattels at*uch sale. 
 
 Hall V. Ditson, 55 How. 19. 
 
 Olcott V. Tioga R. R. Co., 27 N. Y. 546. 
 
 Edminston v. Brucker, 40 Hun, 256. Citing 
 
 Hart V. Ten Eyck, 2 Johns. Ch. 62. 
 
 Charter v. Stevens, 3 Den. 33. 
 
 Patchin v. Pierce, 12 Wend. 61. 
 
 Hall V. Ditson, 55 How. 19. 
 
 King V. Walbridge, 48 Hun, 470. 
 
 Where a mortgagee takes possession of the mortgaged 
 property, it will, if of sufficient value, be deemed a satis- 
 faction of the debt until the equity is foreclosed. 
 
 Stoddard v. Denison, 38 How. 301. 
 
BY THE MORTGAGEE. 71 
 
 Where the mortgagee sells under a chattel mortgage, 
 property more than sufficient to pay the mortgage debt, 
 bids the same In himself, and takes possession, claiming the 
 property under this title, the mortgagor may elect to treat 
 the entire sale as valid, and to regard the amount for which 
 the property sold in excess of the indebtedness secured, as 
 unpaid purchase money in the hands of the mortgagee. 
 
 Davenport v. McChesney, 86 N. Y. 242. 
 
 If the debt is payable in installments, and default be made 
 in the payment of one installment only, the title of the 
 mortgagee is as perfect as if default was made in the pay- 
 ment of the whole debt. To entitle the mortgagor to re- 
 deem, he must pay or tender the whole debt. 
 
 Halstead v. Swartz, 46 How. 289. 
 
 Willis V. O'Brien, 3 Jones & Spencer, 537. 
 
 The mortgagor, in such case, cannot recover the payments 
 that he has made. 
 
 Haynes v. Hart, 42 Barb. 58. Citing 
 
 Green v. Green, 9 Cow. 46. 
 
 Battle V. The Rochester City Bank, 3 Comst. 88. 
 
 Where the mortgagee of the interest of one tenant in 
 common of a chattel causes the whole chattel to be sold at 
 public sale, by virtue of his mortgage, one who purchases 
 and takes possession of the chattel at such sale, with notice 
 of the rights of the other tenant in con\mon, is liable to him 
 in an action for the conversion for his interest therein. 
 
 Van Doren v. Baity, 1 1 Hun, 239. 
 
 Where a mortgage, given to secure the purchase-price, con- 
 tains a clause that the property shall remain in the posses- 
 sion of the mortgagor until default, but on default, or in 
 case the mortgagor shall attempt to remove or dispose of 
 
72 CHATTEL MORTGAGES. 
 
 the property, the mortgagee may take possession and sell it, 
 upon the mortgagor's removing the property from the 
 county, although the time for payment has not yet expired. 
 
 Russell V. Butterfield, 21 Wend. 300. 
 
 An action in equity lies to foreclose a chattel mortgage. 
 Briggs V. Oliver, 68 N. Y. 336. 
 
 , And such right of action has not been taken away by the 
 Code of Civil Procedure. 
 
 Fiero's Special Actions, 409. 
 
 Code of Civil Procedure, section 1741. 
 
 Where one condition of a mortgage was, that if the mort- 
 gagor should at any time, before the date of payment, suffer 
 any attachment, or other process, to be issued against him, 
 that then the whole amount should become instantly due and 
 payable; held, that when such process was issued, the mort- 
 gage became due and payable at once, and the mortgagee 
 could take the property from the sheriff, 
 
 Bryan v. Smith, 13 Daly, 332. 
 
 Where a mortgagee of chattels, upon a public sale, makes 
 reasonable and fair efforts to sell the property for a good 
 price, and through the acts, statements and notices of the 
 mortgagor at the time of the sale, the effect of which is to 
 discourage bidding, and the same does not bring a full price, 
 a court of equity will not set aside the sale on the applica- 
 tion of the mortgagor. 
 
 Hall V. Ditson, 55 How. 19. 
 
 It is unnecessary that a chattel mortgage should state 
 that non-payment should work a forfeiture. This is an inci- 
 
BY THE MORTGAGEE. 73 
 
 dent of the relationship between the parties, and a mort- 
 gagor must pay or else his rights at law are terminated. 
 
 Bragelman v. Daue, 69 N. Y. 69. 
 
 But where the mortgagee, after forfeiture, receives pay- 
 ment of his debt, it is a waiver of the forfeiture, and his title 
 to the property is extinguished. 
 
 West V. Crary, 47 N. Y. 423. 
 
 A purchaser on sale under a chattel mortgage, is not con- 
 cluded by a subsequent adjudication, in an action against 
 the mortgagor and mortgagee, to which he was not made a 
 party, that the mortgage was fraudulently made. 
 
 Where the purchase was in good faith, the title of the 
 purchaser is not affected by the fact that the mortgage was 
 executed in pursuance of a conspiracy between the mort- 
 gagor and mortgagee, to hinder, delay and defraud the 
 creditors of the former. 
 
 Zoellerv. Riley, 100 N. Y. 102. 
 
 An injunction lies, at the suit of a mortgagor of chattels, 
 with the reservation of possession for a certain time, to pre- 
 vent the mortgagee from taking possession before the time 
 limited. 
 
 Ford V. Ransom, 8 Abb. (N. S.) 416. 
 
 If, after sale, there remains a surplus, such surplus belongs 
 to the mortgagor. 
 
 Parish v. Wheeler, 22 N. Y. 494. 
 
 If there be a deficiency, the mortgagee may maintain an 
 action for such deficiency. 
 
 Case V. Boughton, 1 1 Wend. 1 06. 
 
74 CHATTEL MORTGAGES. 
 
 The remedy by sale, under the power in the mortgage, 
 without resort to judicial proceedings, is in most cases a more 
 speedy and effectual means of extinguishing the equity of 
 redemption, and has to a great extent superseded a resort to 
 an action of foreclosure ; but the right to foreclose by action 
 has not been taken away. 
 
 Briggs V. Oliver, 68 N. Y. 336. 
 
 There is no definite course of practice laid down in the 
 cases, or by statute, and in the absence of any other guide, 
 it would be safe to adopt the method of sale and of giving 
 notice prescribed by statute for sales of goods and chattels 
 upon execution. This would involve the fastening up of 
 written or printed notices of the sale, in three pubhc places 
 of the town where such sale is to be had, specifying the 
 time and place where the same is intended to be had, at 
 least six days previous to such time. One of these notices 
 should also be delivered to the mortgagor personally, or left 
 at his place of residence. An advertisement of the notice in a 
 newspaper may or may not be made, according to the special 
 circumstances of each case ; and it should be made, if, in the 
 judgment of the mortgagee, the probability of a larger at- 
 tendance and of better prices would render the incurring of 
 the expense prudent or desirable for the interests of all con- 
 cerned. In general, it may be remarked that in small towns, 
 the posting of the notices will afford sufficient publicity, 
 while in large cities, chattels of any considerable value, should 
 not be sold without advertising the notice of sale in one of 
 the public prints. 
 
 Thomas on Mortgages, 453. 
 
 One whose property is about to be sold by virtue of a 
 chattel mortgage, may lawfully agree with another, that the 
 latter shall bid a certain amount for the property, and if he 
 becomes the purchaser, shall give the mortgagor an undi- 
 vided interest therein for the benefit of the members of his 
 family, on his paying an equal share of the purchase-money. 
 
BY THE MORTGAGEE. 75 
 
 Such an agreement is neither a fraud upon creditors, nor 
 against public policy. 
 
 Baune v. Drew, 4 Den. 287. 
 
 Upon a sale of property by virtue of a chattel mortgage, 
 the proceeding is notice to the public, that the mortgagee is 
 selling, not his own title to the property, but that which he 
 has acquired through the mortgage, and no warranty of 
 title of the property so sold, is to be implied against the 
 mortgagee. 
 
 Sheppard v. Earles, 13 Hun, 651. 
 
 Article second, of title 2, of chapter 14 of the Code 
 of Civil Procedure, provides a simple, cheap and speedy 
 method of foreclosing a chattel mortgage. It is much more 
 simple than an equitable action, but the right to bring an 
 action in equity is fully preserved in said article. The pro- 
 visions of the article are as follows : 
 
 "§ 1737- An action may be maintained to foreclose a lien 
 upon a chattel, for a sum of money in any case where such 
 a lien exists at the commencement of the action. The ac- 
 tion may be brought in any court of record, or not of 
 record, which would have jurisdiction to render a judg- 
 ment in an action founded upon a contract for a sum equal 
 to the amount of the lien." 
 
 "§ 1738- Where the action is brought in the Supreme 
 Court, a Superior City Court, the Marine Court of the city of 
 New York, or a County Court, if the plaintiff is not in pos- 
 session of the chattel, a warrant may be granted by the 
 court, or a judge thereof, commanding the sheriff to seize 
 the chattel, and safely keep it to abide the final judgment 
 in the action. The provisions, of title third of chapter 
 seventh, of this act apply to such a warrant, and to the pro- 
 ceedings to procure it and after it has been issued, as if it 
 was a warrant of attachment, except as otherwise expressly 
 prescribed in this article." 
 
76 CHATTEL MORTGAGES. 
 
 "§ 1739' III ^n action brought in a court specified in the 
 last section, final judgment, in favor of the plaintiff must 
 specify the amount of the lien, and direct a sale of the 
 chattels to satisfy the same and the costs, if any, by a 
 referee appointed thereby, or an officer designated therein, 
 in like manner as where a sheriff sells personal property by 
 virtue of an execution ; and the application by him of the 
 proceeds of the sale, less his fees and expenses, to the pay- 
 ment of the amount of the lien, and the costs of the action." 
 
 " It must also provide for the payment of the surplus to 
 the owner of the chattel, and for the safe-keeping of the 
 surplus, if necessary, until it is claimed by him. If a de- 
 fendant, upon whom the summons is personally served, is 
 liable for the amount of the lien, or for any part thereof, it 
 may also award payment accordingly." 
 
 "§ 1740. Where the action is brought in a court, other 
 than one of those specified in the last section but one, if the 
 plaintiff is not in possession of the chattel, a warrant, com- 
 manding the proper officer to seize the chattel, and, safely 
 keep it to abide the judgment, may be issued, in like manner 
 as a warrant of attachment may be issued in an action 
 founded upon a contract, brought in the same court ; and 
 the provisions of law, applicable to a warrant of attachment, 
 issued out of that court, apply to a warrant, issued as pre- 
 scribed in this section, and to the proceedings to procure it, 
 and after it has been issued ; except as otherwise specified 
 in the judgment." 
 
 "A judgment in favor of the plaintiff, in such an action, 
 must correspond to a judgment, rendered as prescribed in 
 the last section, except that it must direct the sale of the 
 chattel by an officer to whom an execution, issued out of 
 the court, may be directed ; and the payment of the surplus, 
 if its safe-keeping is necessary, to the county treasurer, for 
 the benefit of the owner." 
 
 "§ 1741. This article does not affect any existing right or 
 remedy to foreclose or satisfy a lien upon a chattel, without 
 
OF TAKING POSSESSION, ETC. ii 
 
 action ; and it does not apply to a case, where another mode 
 of enforcing a lien upon a chattel is specially prescribed by 
 law." 
 
 It is immaterial, since the enactment of the Code of 
 Civil Procedure, whether the plaintiff names his action as 
 equitable or legal. The court will grant him such relief as 
 the allegations in the complaint and the proofs on the trial 
 demand. 
 
 King V. Van Vleck, 109 N. Y. 363. 
 
 Of Taking Possession under the Danger Clause. 
 
 The danger clause is for the benefit of the mortgagee, 
 and authorizes possession when there was default, or when 
 in their judgment they deemed it best for the safety of their 
 demand; and no proof is required to show that they so 
 consider themselves unsafe, as the legal presumption would 
 be that such was the fact, when possession was taken before 
 it was due. 
 
 Smith V. Post, i Hun, 518. 
 
 In the case of Allen v. Vose, 34 Hun, 57, a chattel mort- 
 gage was given upon a growing crop of wheat and a mare, 
 which provided, " that in case the said mortgagee shall at 
 any time deem himself unsafe, it shall be lawful for him to 
 take possession of the said property, and to sell the same at 
 public or private sale, previous to the time above mentioned, 
 for the payment of said debt, applying the proceeds upon 
 the mortgage after deducting all expenses of sale and keep- 
 ing said property." On July 17, the crop having proved to 
 be a failure, the mortgagor sold his interest therein to the 
 defendant for $10, which was applied on the debt. The 
 mortgage was given for $100. The mare was worth not 
 more than $50. On July 18, the mortgagee took possession 
 of, and sold the mare, under the above-mentioned clause. 
 Held, that he had reasonable cause to deem himself unsafe, 
 and was justified in acting as he did. 
 
78 CHATTEL MORTGAGES, 
 
 The right of the mortgagee to take possession of the 
 mortgaged property under such a clause, considered by 
 Haight, J., and the cases bearing thereon collated. 
 
 CHAPTER V. 
 
 I. Assignment. III. Satisfaction. 
 
 11. Payment. IV. Redemption. 
 
 Assignment. 
 
 A chattel mortgage may be assigned, and if such assign- 
 ment include the debt secured thereby, it passes all the 
 mortgagee's interest in the mortgaged property. The debt 
 is the principal thing, and the mortgage an incident only. 
 
 An assignment of the debt carries the mortgage, and an 
 assignment of the mortgage without the debt, is a nullity. 
 
 Langdon v. Buel, 9 Wend. 80. 
 
 Johnson v. Hart, 3 Johns. Cas. 322. 
 
 Gould V. Marsh, i Hun, 566. 
 
 Freeman v. Auld, 44 N. Y. 57. 
 
 Bloomingdale v. Bowman, 21 N. Y. St. Rep. 247. 
 
 After default, the mortgagee is the legal owner, and can 
 make a valid transfer of the property itself. If, therefore, 
 the mortgagee should assign the mortgage, retaining the 
 debt, his assignee would still acquire his rights in the mort- 
 gaged property. 
 
 Campbell v. Birch, 60 N. Y. 215. 
 
ASSIGNMENT. 79 
 
 The assignment of any particular claim, is considered an 
 equitable assignment of all securities held by the assignor 
 to assure it. Thus the assignment of a debt by whatever 
 form of transfer, carries with it any bill or note by which 
 it is secured, and the converse of the proposition is equally 
 true, that the transfer by endorsement or assignment of a 
 bill or note, carries with it all securities for its payment, 
 whether a mortgage or otherwise. 
 
 Daniel on Negotiable Instruments, 601. 
 
 A transfer of a chattel mortgage, merely by way of collat- 
 eral security for the payment of a debt, is a pledge thereof, 
 and need not be recorded ; and notwithstanding such pledge, 
 the pledgor may afterward assign the mortgage to a third 
 person, who may enforce it by a sale of the goods, subject, 
 however, to the lien of the pledgee. 
 
 Hawkins v. Kelly, i Robt. 160; s. c, 1 Abb. (N. 
 S.)32. 
 
 The provisions of the statutes relative to the filing of 
 chattel mortgages, do not apply to assignments of them. 
 
 The latter are not required to be filed, as against an exe- 
 cution creditor of the mortgagee. Although a mortgagor, 
 after the mortgage had been assigned by the mortgagee to 
 a third person, as security for a debt due from the mortgagee 
 to such third person, conveys without the knowledge or con- 
 sent of such third party, by bill of sale, the mortgaged prop- 
 erty to the mortgagee, which bill of sale is put on record, 
 and the assignment is not recorded, yet, the mortgage in 
 point of law is not cancelled by giving the bill of sale, as 
 against the assignee of the mortgage. The only title the 
 mortgagee acquires in such case, is the equity of redemption. 
 
 Baxter v. Gilbert, 12 Abb. Pr. Rep. 97. 
 
 A bona fide purchaser, before maturity, of a promissory 
 note, secured by a chattel mortgage, takes the mortgage as 
 
8o CHATTEL MORTGAGES. 
 
 he takes the note, free from any equities which existed in 
 favor of third parties, while it was held by the mortgagee. 
 
 Gould V. Marsh, i Hun, 566. Citing 
 Carpenter v. Longan, 16 Wall, 271. 
 
 But it is otherwise, where the mortgage is not given to 
 secure a negotiable instrument, and generally an assignee 
 will take the mortgage, subject to all the equities existing at 
 the time of the assignment, in favor of the debtor against 
 the assignor. The assignee takes the exact position of his 
 vendor. 
 
 Hartley v. Tatham, i Keyes, 222. 
 
 Bush V. Lathrop, 22 N. Y. 535. 
 
 Schafer v. Reilly, 50 N. Y. 61. 
 
 Gould V. Marsh, supra. 
 
 If the mortgagee had notice of a prior unrecorded mort- 
 gage, the assignee takes his place, and is chargeable with the 
 notice which the mortgagee had. 
 
 Decker v. Boice, 83 N. Y. 215. 
 
 II. Payment. 
 
 In general, the payment of the debt for the security of 
 which a chattel mortgage is given, revests the title in the 
 mortgagor, and operates as a discharge of the mortgage. 
 
 Thompson v. Van Vechten, 27 N. Y. 568. 
 
 Where a mortgagee of personal property, after forfeiture, 
 receives payment of his debt, it is a waiver of the forfeiture, 
 and the mortgagee's title is extinguished. 
 
 West V. Crary, 47 N. Y. 423. 
 Porter v. Parmley, 52 N. Y. 188. 
 
PAYMENT. • 8i 
 
 The buyer of a chattel which was mortgaged, paid to the 
 mortgagee part of the purchase-money, with the understand- 
 ing that he should relinquish his claim under the mortgage, 
 and although the mortgagee gave no fprmal discharge, it 
 was held that the mortgagee could not afterward enforce his 
 claim against the chattel. 
 
 Rickerson v. Raeder, 4 Abb. Ct. of App. Dec. 60. 
 
 Where a chattel mortgage is given to secure the surety 
 and endorser of the mortgagor's note, and such note, after 
 being protested, is paid out of the proceeds of a new note 
 made by the mortgagor and endorsed by the mortgagee for 
 that express purpose, the mortgage is not discharged by the 
 payment of the original note, but continues in force as a 
 security to the mortgagee for the amount of the second 
 note. 
 
 In such case, it is proper to show that the payment of the 
 original note with the proceeds of the second, was not de- 
 signed to extinguish the mortgage. 
 
 Gregory v. Thomas, 20 Wend. 17. 
 Chapman v. Jenkins, 31 Barb. 164. 
 Butler V. Miller, i N. Y. 500. 
 Hill V. Beebe, 13 N. Y. 556. 
 
 But if a chattel mortgage be given to secure a debt, which 
 by its terms extends the time - of payment, a surety is by 
 such act discharged. 
 
 Kane v. Cortesy, 100 N. Y. 132. 
 
 A mortgagee is not bound to foreclose his mortgage. He 
 may take and retain the mortgaged property, and the mort- 
 gagee's taking and retaining possession in such case, consti- 
 tutes payment of the mortgage debt. 
 
 Case V. Boughton, ii Wend. 106. 
 II 
 
82 CHATTEL MORTGAGES. 
 
 So a conversion of the mortgaged property by the mort- 
 gagee to his own use, is a payment of the debt pro tanto. 
 
 Clark V. Griffith, 2 Bosw. 558. 
 
 If a purchaser at an execution sale, pay off a chattel mort- 
 gage thereon, it is extinguished, and he cannot enforce it 
 against any other property than that which he purchases, 
 although other property is embraced in the mortgage. 
 
 Brown v. Rich, 40 Barb. 28. 
 
 III. Satisfaction. 
 
 Chapter 171 of the Laws of 1879 provides as follows: 
 
 "§ I. Whenever any mortgagor, or any person obtaining 
 title to mortgaged property, shall present to anj?- recorder, 
 county or town clerk, in whose office a chattel mortgage 
 executed by said mortgagor on such property may be filed, 
 a certificate from the mortgagee therein named, or the 
 holder or owner thereof, that such mortgage is paid or satis- 
 fied, it shall be the duty of such recorder, or either of the 
 clerks above mentioned, to file such certificate in his office, 
 and discharge such mortgage by writing in the book kept 
 by such recorder or either of such clerks, and opposite the 
 entry therein of such mortgage, the word ' discharged,' with 
 the date thereof." 
 
 This certificate, it is believed, need not be acknowledged, 
 in order to be filed. 
 
 Maxwell v. Inman, 42 Hun, 267. 
 
 Where the mortgagee takes possession of the mortgaged 
 property, it will, if of sufficient value, be deemed a satis- 
 faction of the debt, until the equity is foreclosed. 
 
 Stoddard v. Denison, 38 How. 296. 
 
REDEMPTION. 83 
 
 Where, upon a mortgage becoming due, the mortgagor, 
 under an agreement with the mortgagee, delivered the mort- 
 gaged ' property to the mortgagee, who thereupon gave to 
 the mortgagor, under such an agreement, a " satisfaction- 
 piece " of the mortgage, which was filed ; held, that an 
 action to cancel such satisfaction so as to restore the mort- 
 gage to its priority over mortgages that had been subse- 
 quently given, but before the satisfaction * * * was 
 proper, and could be maintained. 
 
 Lambert v. Leland, 2 Sweeny, 218. 
 
 III. Redemption. 
 
 Until foreclosure and sale, either by action or under the 
 power contained in the mortgage, the mortgagor has an 
 equity of redemption. 
 
 Noyes v. Wyckoff, 30 Hun, 466. 
 
 Duff us V. Bangs, 43 Hun, 52. 
 
 King V. Walbridge, 48 Hun, 470. 
 
 Cutler V. The James Goold Co., 43 Hun, 516. 
 
 King V. Van Vleck, 109 M. Y. 367. 
 
 A mortgagor cannot debar himself of his right to redeem, 
 by a written agreement made at the time of the execution 
 of the mortgage, to give up all claim to the property upon 
 default. 
 
 Simon v. Schmidt, 41 Hun, 318. 
 Buneclaugh v. Poolman, 3 Daly, 236. 
 
 The action to redeem need not be brought in equity. An 
 action for money had and received is proper. 
 
 King V. Van Vleck, supra. 
 
 In an action for redemption of personal property, the 
 plaintiff may recover the rents and profits, or what is the 
 
84 CHATTEL MORTGAGES. 
 
 same thing, for the use of it, during the time he is deprived 
 of such use. 
 
 Pratt V. Stiles, 17 How. 211. 
 Mickles v. Dillaye, 17 N. Y. 84. 
 Cutler V. The James Goold Co., supra. 
 
 In that case, defendant sold a carriage to the plaintiff, 
 taking in part payment, several notes payable monthly, and 
 a chattel mortgage upon the carriage to secure their pay- 
 ment, which provided that defendants might take the prop- 
 erty and sell the same at such time as they should see fit. 
 
 At a time when there was no default in the payment of 
 any of the notes, defendants attempted to seize the carriage, 
 when plaintiff tendered the amount due upon all the remain- 
 ing notes, attaching as a condition that such notes should 
 be returned to him. Held, that the plaintiff had a right to 
 redeem, and that the fact that his notes were negotiable and 
 not due, justified requiring their return as a condition of the 
 tender, and that he could maintain an action for the redemp- 
 tion of the property, in which the court might award a 
 judgment for its value, upon proof that it had subsequently 
 been sold. 
 
 It may be stated generally, that a mortgagor must redeem 
 within a reasonable time. What constitutes such reasonable 
 time must be determined by a court of equity, or statute 
 of limitations specially applicable to the case. 
 
 Pratt V. Stiles, 17 How. Pr. 211. 
 
 An attaching creditor may redeem as soon as his attach- 
 ment or execution becomes a lien, and an execution creditor 
 has the same right as soon as he has acquired a lien by levy 
 of his execution. 
 
 Hinman v. Judson, 13 Barb. 629. 
 
FILING AND RECORDING. 85 
 
 One to whom the mortgaged property is bequeathed by- 
 will can redeem. 
 
 King V. Van Vleck, 109 N. Y. 367. 
 
 The mortgagor, or those standing in his place, has the 
 right to redeem. 
 
 Hinman v. Judson, supra. 
 
 CHAPTER VI. 
 
 OF MORTGAGES ON SHIPS AND VESSELS. 
 
 I. Filing and recording. IV. Of priority between liens and 
 
 II. Of liens for repairs and supplies. mortgages. 
 
 III. Of validity. V. Of bottomry and respondentia. 
 
 I. Filing and Recording. 
 
 The United States statute (Act of July 29, 1850) provides 
 as follows: 
 
 " Section i. No bill of sale, mortgage, hypothecation, or 
 conveyance of any vessel of the United States shall be valid 
 against any person other than the grantor or mortgagor, his 
 heirs and devisees, and persons having actual notice thereof, 
 unless such bill of sale, mortgage, hypothecation, or convey- 
 ance, is recorded in the office of the collector of customs 
 where such vessel is registered or enrolled. The lien by 
 bottomry on any vessel created during her voyage by a loan 
 of money or materials necessary to repair or enable her to 
 prosecute a voyage, shall not, however, lose its priority, 
 or be in any way affected by the provisions of this section. 
 
86 CHATTEL MORTGAGES. 
 
 " The collectors of the customs shall record all such bills of 
 sale, mortgages, hypothecations or conveyances, and also all 
 certificates for discharging and cancelling any such convey- 
 ances in books to be kept for that purpose in the oraer of 
 their reception, noting in such books and also on the bill of 
 sale, mortgage, hypothecation or conveyance, the time when 
 the same was received, and shall certify on the bill of sale, 
 mortgage or hypothecation, or conveyance or certificate of 
 discharge or cancellation, the number of the book and page 
 where recorded ; but no bill of sale, mortgage, hypotheca- 
 tion, conveyance or discharge of mortgage or other incum- 
 brance of any vessel, shall be recorded, unless the same is 
 duly acknowledged before a notary public or other officer 
 authorized to take acknowledgment of deeds. The col- 
 lectors of the customs shall keep an index of such records, 
 inserting alphabetically the names of the vendor or mort- 
 gagor, and of the purchaser or mortgagee, and shall permit 
 such index and books of records to be inspected during 
 office hours, under such reasonable regulations as they may 
 establish ; and shall, when required, furnish to any person a 
 certificate, setting forth the names of the owners of any 
 vessel registered or enrolled, the parts or proportions owned 
 by each, if inserted in the register or enrollment, and also 
 the material facts of any existing bill of sale, mortgage, 
 hypothecation or other incumbrance upon such vessel, re- 
 corded since the issuing of the last register or enrollment, 
 namely, the date, amount of such incumbrance, and from 
 and to whom or in whose favor made." 
 
 U. S. Revised Statutes, §§ 4192-4194. 
 
 Vessels of the United States, within the meaning of the 
 above statute, are such as have been built in the United 
 States and belong wholly to citizens of the United States, 
 and have been registered as required by statute, or if coast- 
 ing vessels, such as have been enrolled and licensed as such. 
 
 Act of Congress, February 18, 1793, § i. 
 
FILING AND RECORDING. 87 
 
 In the case of a coasting vessel, she must be both en- 
 rolled and licensed, to make her a vessel of the United States. 
 
 Best V. Staple, 61 N. Y. 71. 
 
 A canal boat, or scow, is not a vessel of the United States, 
 within the meaning of the act relating to the recording of 
 mortgages. 
 
 Hicks V. Williams, 17 Barb. 523. 
 
 / 
 It has been held in Massachusetts (5 Allen, 280) that a 
 
 pleasure yacht is not within the recording act. 
 
 A mortgage of a registered vessel need not be recorded 
 in pursuance of any State statute, in order to give the mort- 
 gage a preference over a subsequent purchaser or mortgagee, 
 if it be duly recorded according to the statute of the 
 United States, in the office of the collector of the home 
 port of the vessel. 
 
 The statute of the United States excludes all State legis- 
 lation upon the subject, whether such legislation be prior or 
 subsequent to the United States statute. 
 
 White's Bank v. Smith, 7 Wall. 646. 
 
 Aldrich v. ^tna Co., 8 Wall. 491. Reversing s. c, 
 
 26 N. Y. 92, and overruling in part 
 Thompson v. Van Vechten, 27 N. Y. 568. 
 Folger V. Weber, 16 Hun, 512. 
 Best V. Staple, 61 N. Y. 71. 
 
 " Previous to the act of 1850, providing for the recording 
 of bills of sale, and mortgages of vessels, they were re- 
 quired to be filed by the law of many of the States, in the 
 clerk's office or some place of public deposit in the town or 
 city where the vendor or mortgagor resided, in order to 
 protect the interest of the vendee, or mortgagee, against 
 subsequent bona fide purchasers or mortgagees, and this 
 
88 CHATTEL MORTGAGES. 
 
 practice continued in many places after the passage of the 
 act of 1850 for abundant caution, on account of a doubt 
 as to the effect that would, or might be given to it, as a re- 
 cording act from the very imperfect provisions of the law- 
 There can be no doubt, however, but that the system of re- 
 cording these instruments in the collector's office at the 
 home port of the vessel form a much readier opportunity to 
 persons dealing in this species of property to obtain a 
 knowledge of the condition of the title, than by the former 
 mode under the State law." 
 
 Nelson, J., in White's Bank v. Smith, 7 Wall. 646. 
 
 The New York State statute, chapter 412 of the Laws of 
 1864, provides: 
 
 "Section i. Hereafter, any person having any lien' or 
 incumbrance on any canal boat, steam tug, scow or other 
 craft, navigating the canals of this State, by a chattel mort- 
 gage, shall file the same, or a true copy thereof, in the 
 office of the auditor of the canal department. 
 
 " § 2. Hereafter, every mortgage or conveyance intended 
 to operate as a mortgage of any canal boat, steam tug, 
 scow or other craft navigating the canals of this State, to- 
 gether with the appurtenances belonging thereto, and used 
 in navigating such craft hereafter made, which shall not be 
 accompanied by an immediate delivery, and followed by an 
 actual and continued change of possession of the property 
 mortgaged, shall be absolutely void as against the creditors 
 of the mortgagor, and as against subsequent purchasers and 
 mortgagees in good faith, unless the mortgage or a true 
 copy thereof shall be filed as directed in the previous sec- 
 tion of this act. 
 
 " § 3. Every mortgage iiled in pursuance of this act shall 
 cease to be valid as against the creditors of the person mak- 
 ing the same, or against subsequent purchasers or mort- 
 gagees in good faith, after the expiration of one year from 
 the filing thereof, unless within thirty days next preceding 
 
FILING AND RECORDING. 89 
 
 the expiration of the said term of one year, a true copy of 
 such mortgage, together with a statement exhibiting the in- 
 terest of the mortgagee in the property thereby claimed by 
 him by virtue thereof, shall be again filed as directed in the 
 first section of this act." 
 
 A chattel mortgage on a canal boat not accompanied by 
 an immediate delivery, and followed by an actual and con- 
 tinued change of possession, is absolutely void against 
 creditors of the mortgagor, unless it be filed as provided by 
 chapter 412, Laws of 1864, notwithstanding the fact that 
 the mortgagor, mortgagee and attaching creditor are all 
 non residents of the State. 
 
 Keller v. Paine, 107 N. Y. 83. 
 
 The office of auditor of the canal department was abol- 
 ished by the statute of 1883, and the duties performed by 
 such auditor were, by said act, to be thereafter performed 
 by the comptroller. 
 
 Laws of 1883, chapter 69. 
 See The EllaB.,/^/. 
 
 Under the New York statutes, if the vessel be engaged 
 in canal navigation, the specifications of the debt must be 
 filed in the office of the canal department. 
 
 The Ella B., 26 Fed. Rep. iii (District Ct, N. Y., 
 1886). 
 
 Under the act of 1862 (chapter 482), the specifications as 
 therein provided, must be filed in the office of the clerk of 
 the county in which such debt shall have been contracted, 
 except that when such debt shall have been contracted in 
 either of the counties of New York, Kings or Queens, such 
 specifications shall be filed in the office of the clerk of the 
 city and county of New York. 
 
90 CHATTEL MORTGAGES. 
 
 II. Of Liens for Repairs and Supplies. 
 
 Chapter 482 of the Laws of 1862 of this State provides as 
 follows : 
 
 " Section i. Whenever a debt amounting to $50 or up- 
 wards as to a sea going or ocean bound vessel, or amount- 
 ing to $15 as to any other vessel, shall be contracted by the 
 master, owner, charterer, builder or consignee of any ship 
 oV vessel, or the agent of either of them within this State, 
 for either of the following purposes : 
 
 "First. On account of work done or materials furnished in 
 this State for, or towards the building, repairing, fitting, fur- 
 nishing or equipping such ship or vessel. 
 
 '■'■Second. For such provisions and stores furnished within 
 this State as may be fit and proper for the use of such vessel 
 at the time when the same were furnished. 
 
 " Third. On account of the wharfage and expenses of keep- 
 ing such vessel in port, including the expense incurred in 
 employing persons to watch her. 
 
 "Fourth. On account of loading or unloading, or for ad- 
 vances made for the purpose of procuring necessaries for 
 such ship or vessel, or for the insurance thereof. 
 
 "Fifth. Or whenever a debt, amounting to $25 or upwards, 
 shall be contracted, as aforesaid, within this State, on ac- 
 count of the towing or piloting such vessel, or on account 
 of the insurance or premiums of insurance, of or on such 
 vessel, or her freight, such debt shall be a lien upon such 
 vessel, her tackle, apparel and furniture, and shall be pre- 
 ferred to all other liens thereon except mariners' wages. 
 
 " § 2. Such debt shall cease to be a lien at the expiration 
 of six months after the said debt was contracted, unless at 
 the time when said six months shall expire, such ship or 
 vessel shall be absent from the port at which such debt was 
 contracted, in which case the said lien shall continue until 
 
OF LIENS FOR REPAIRS AND SUPPLIES. 91 
 
 the expiration of ten days after such ship or vessel shall 
 next return to said port ; and, in all cases, such debt shall 
 cease to be a lien upon such ship or vessel, whenever such 
 ship or vessel shall leave the port at which such debt was 
 contracted, unless the person having such lien shall, within 
 twelve days after such departure, cause to be drawn up and 
 filed, specifications of such lien, which may consist either of 
 a bill of particulars of the demand, or a copy of any written 
 contract under which the work may be done, with a state- 
 ment of the amount claimed to be due from such vessel, the 
 correctness of which shall be sworn to by such person, his 
 legal representatives, agents or assigns. 
 
 " § 3. Such specifications shall be filed in the office of the 
 clerk of the county in which such debt shall have been con- 
 tracted, except that when such debt shall have been con- 
 tracted in either of the counties of New York, Kings or 
 Queens, such specifications shall be filed in the office of the 
 clerk of the city and county of New York." 
 
 The remaining provisions of said act, apply to the fore- 
 closure of the lien, and the distribution of the proceeds. 
 
 Section 2 of the foregoing act was amended by chapter 
 273 of the Laws of 1885 as follows: 
 
 " § 2. Such debt shall cease to be a lien at the expiration 
 of twelve months after the said debt was contracted, unless 
 at the time when said twelve months shall expire, such ship 
 or vessel shall be absent from the port at which said debt 
 was contracted, in which case the said lien shall continue 
 until the expiration of thirty days after such ship or vessel 
 shall next return to said port ; and in all cases such debt 
 shall cease to be a lien upon such ship or vessel, whenever 
 such ship or vessel shall leave the port at which such debt 
 was contracted, unless the person having such lien shall, 
 within twelve days after such departure, cause to be drawn 
 up and filed, specifications of such lien, which may consist 
 either of a bill of particulars of the demand, or a copy of any 
 written contract, under which the work may be done, with a 
 
92 CHATTEL MORTGAGES. 
 
 statement of the amount claimed to be due from such vessel, 
 the correctness of which shall be sworn to by such person, 
 his legal representatives, agents or assigns." 
 
 Section 2 of the act of 1862 was further amended by- 
 chapter 88 of the Laws of 1 886 as follows : 
 
 " Such debt shall cease to be a lien at the expiration of 
 twelve months, after the said debt was contracted, unless at 
 the time when said twelve months shall expire, such ship or 
 vessel shall be absent from the port at which said debt was 
 contracted, in which case the said lien shall continue until 
 the expiration of thirty days after such ship or vessel, shall 
 next return to said port, and in all cases, such debt shall 
 cease to be a lien upon such ship or vessel, unless the per- 
 son having such lien shall, within thirty days after said debt 
 is contracted, cause to be drawn up and filed, specifications 
 of such lien, which may consist either of a bill of particulars 
 of the demand, or a copy of any written contract, under 
 which the work may be done, with a statement of the amount 
 claimed to be due from such vessel, the correctness of which, 
 shall be sworn to by such person, his legal representatives, 
 agent, or assigns." 
 
 The seventh section of the act of 1862, was amended by 
 chapter 422 of the Laws of 1863, as follows : 
 
 " Section i . Section seventh of chapter 482 of the Laws 
 of 1862, is hereby amended by striking out of said section 
 the word ' eleventh ' and inserting in place thereof, the 
 word ' twelfth.' 
 
 " § 2. The second section of the said chapter shall not 
 apply to vessels navigating the western and northwestern 
 lakes, or either, or any of them. 
 
 " Any debt contracted by the master, owner, charterer, 
 builder or consignee of any ship or vessel navigating such 
 lakes, or either of them, or by the agent of such master, 
 owner, charterer, builder or consignee, shall cease to be a 
 lien at the expiration of six months after the first of January 
 
OF LIENS FOR REPAIRS AND SUPPLIES. 93 
 
 next succeeding the time such debt shall have been con- 
 tracted, unless during the six months such ship or vessel 
 shall be absent from the port at which such debt was con- 
 tracted, in which case the said lien shall continue until the 
 expiration of ten days after such ship or vessel shall next 
 return to said port. In all cases such debt shall cease to be 
 a lien upon such ship or vessel unless the person having such 
 debt, shall by the first Tuesday of February next succeed- 
 ing the time such debt shall have been contracted, cause to 
 be drawn up, verified and filed, specifications of such debt, 
 in the form and comprising the statements prescribed by 
 said chapter." 
 
 Sections 3 and 9 of the act of 1862, were amended by chap- 
 ter 334 of the Laws of 1879, as follows : 
 
 " Such specifications shall be filed in the office of the clerk 
 of the county in which such debt shall have been contracted, 
 except that when such debt shall have been contracted in 
 either of the counties of New York, Kings or Queens then 
 such specifications shall be filed in the office of the clerk of 
 the city and county of New York ; and it shall also be the 
 duty of any and all parties or persons, their heirs, their 
 legal representatives, agents or assigns, after the filing of 
 such specifications in the county clerk's office as in said act 
 provided, in case the vessel is built, used or fitted for the 
 navigation of any of the canals or lakes of this State, to im- 
 mediately thereafter file, or cause to be filed, a copy of 
 said specifications in the office of the auditor of the canal 
 department, duly certified by the county clerk, in whose 
 ofifice the original specifications shall have been filed. 
 
 " § 9. The person applying for such warrant shall, within 
 three days after the issuing thereof, cause a notice to be 
 published once in each week, for four successive weeks, in 
 some newspaper published in the county in which such ves- 
 sel may then be, or if no newspaper be so published in such 
 county, then in the nearest county in which a newspaper 
 shall be so published, setting forth that such warrant has 
 
94 CHATTEL MORTGAGES. 
 
 been issued, the amount of the claim specified therein, the 
 day when such warrant was issued, and that such vessel will 
 be sold for the payment of the claims against her, unless the 
 master, owner or consignee thereof, or some person inter- 
 ested therein, appear and discharge such warrant according 
 to law, within thirty days from the first publication of such 
 notice, and in case the vessel is built, used or fitted for the 
 navigation of any of the canals or lakes of this State, shall 
 also serve a copy of such notice, personally, at least ten days 
 before the issuing of the order of sale mentioned in section 
 fifteen of the act hereby amended, upon all persons who may 
 have filed any claim or lien upon such ship or vessel, by 
 mortgage or otherwise, in the office of the auditor of the 
 canal department, or the service of such notice may be made 
 at least twenty days before the issuing of said order above 
 mentioned, by leaving a copy of the same at their dwelling- 
 house in charge of some person of suitable age, or by depos- 
 iting the same in the post-office properly folded and directed 
 to such persons at their respective places of residence, and 
 paying the postage thereon." 
 
 This act was further amended by chapter 2 16 of the Laws 
 of 1885, which provides as follows : 
 
 "Section i. Section 2 of chapter 422 of the Laws of 
 1863 * * * is hereby amended as follows: 
 
 "§ 2. The second section of said chapter shall not apply to 
 vessels navigating the western and north-western lakes, or 
 either or any of them, or the St. Lawrence river. 
 
 " Any debts contracted by the master, owner, charterer, 
 builder or consignee of any ship or vessel navigating such 
 lakes, or either of them, or navigating said river or by the 
 agents of such master, owner, charterer, builder, or con- 
 signee, shall cea'se to be a lien at the expiration of six 
 months after the first day of January next succeeding the 
 time such debt shall have been contracted, unless during the 
 said six months such ship or vessel shall be absent from the 
 port at which such debt was contracted, in which case the 
 
OF LIENS FOR REPAIRS AND SUPPLIES. 95 
 
 said Hen shall continue until the expiration of ten days after 
 such ship or vessel shall next return to said port. In all 
 cases such debt shall cease to be a lien upon said ship or 
 vessel unless the person having such debt, shall by the first 
 Tuesday of February next succeeding the time such debt 
 shall have been contracted, cause to be drawn up, verified 
 and filed, specifications of such debt in the form and com- 
 prising the statements prescribed by said chapter." 
 
 In New York no lien is given for services, which are in no 
 sense maritime, rendered after the close of navigation. 
 
 A mariner may also be a mechanic ; but the fact that he 
 works as such upon a vessel, while she is lying in port, does 
 not give him a lien for his services. 
 
 The Alonson Sumner, 28 Fed. Rep. 670. (Dist. Ct. 
 N. Y. 1886.) 
 
 The New York statute of 1862, chapter 482, so far as it 
 attempts to give a remedy for the enforcement of maritime 
 contracts, which is not according to the course of the common 
 law, is unconstitutional and void. A contract for repairs done, 
 or for supplies furnished to a vessel, either foreign or domes- 
 tic, is a maritime contract, which courts of admiralty have 
 jurisdiction ; but where such work is done, or supplies fur- 
 nished to a domestic vessel in her home port, no lien exists 
 in the maritime law. 
 
 The Edith, 94 U. S. 520. 
 
 Under the maritime law, there is no lien upon a vessel for 
 materials furnished and work done in repairing her at her 
 home port. 
 
 The Edith, supra. 
 
 The Lattawanna, 21 Wall. 558. 
 
 The authorities are very clear that an agreement for the 
 building and construction of a vessel is not maritime. 
 
96 CHATTEL MORTGAGES. 
 
 People's Ferry Co. v. Beers, 20 How. (U. S.) 402. 
 
 Roach V. Chapman, 22 How. 129. 
 
 Morewood v. Enequist, 23 How. 491. 
 
 /Edwards v. Elliott, 21 Wall. 532. 
 
 Cunningham v. Hall, i Cliff. 46. 
 
 Young V. The Orphans, 2 Cliff. 29. 
 
 A sailing vessel, in process of construction, was launched 
 before it was completed, and thereafter the plaintiff con- 
 tracted to furnish her with sails, as part of, and to complete 
 the work of construction. She was then drawn out of the 
 water and again put upon the ways, and while there her con- 
 struction was completed and the sails furnished. Held, that 
 the contract was not a maritime one ; and that a lien upon 
 the vessel for the price of the sails, perfected in accordance 
 with the provisions of the act of 1862 (chapter 482, of Laws 
 of 1862) was valid and enforceable. 
 
 Wilson V. Lawrence, 82 N. Y. 409. 
 
 In the case of Warner v. Miller, 1 2, Hun, 654, the plain- 
 tifi's intestate made repairs upon a canal boat, owned by the 
 defendant, in pursuance of orders received from the captain 
 of the boat. Subsequently the captain paid to the plaintiff, a 
 portion of the bill and gave his note for the balance. The 
 plaintiff, without returning the note, brought this action to 
 recover of the defendant, the amount of the unpaid balance 
 due for the repairs. The court said : 
 
 " The defendant was owner of the boat, and as such, was 
 liable for repairs made upon her by direction of the captain. 
 When it is shown, however, that the repairs were made 
 on the credit of the captain alone, the owner is not liable ; 
 and taking the note of the captain for the amount of the re- 
 pairs is sufficient evidence of that fact. The note, in such 
 case, is not considered as payment of the debt, so as thereby 
 to discharge the owner, but solely as evidence that the work 
 was not done on the credit of the owner. The plaintiff 
 cannot recover." 
 
OF LIENS FOR REPAIRS AND SUPPLIES. 97 
 
 A steam dredge being within the definition of a vessel in 
 the United States Revised Statutes, is subject to a maritime 
 lien for supplies. 
 
 Pioneer, 30 Fed. Rep. 206. (U. S. Dist. Ct. N. Y.) 
 
 The home port of a vessel is made by the statute, at or 
 nearest to which the owner usually resides. (U. S. Revised 
 Statutes, § 4141.) The fact that a person has a continuous 
 business place at another place than where he resides, at 
 which he is found during office hours, will not constitute 
 such place his residence in the statutory sense. 
 
 The Thomas Fletcher, 24 Fed. Rep. 375. 
 
 The departure of a domestic vessel in the regular course 
 of her occupation, from Brooklyn to Long Beach, and upon 
 her return making fast to the shore in Rockaway Inlet, is 
 such a leaving of the port as to prevent the enforcing of a 
 lien against her under the laws of the State of New York. 
 
 The Whistler, 30 Fed. Rep. 199. (Dist. Ct., E. D.of 
 N. Y.) 
 
 If supplies are furnished in the home port, the duration 
 and requirements of the lien depend upon the terms of the 
 State statute. 
 
 The Ella B., 26 Fed. Rep. iii. 
 
 Where, after default in the payment of the sum secured 
 by a chattel mortgage upon a canal boat, the owner, with 
 the knowledge and consent of the mortgagee, continues in 
 possession, running the boat as his own, he is authorized to 
 keep her in repair, and can confer a right of lien thereon 
 for repairs necessary to make her fit for navigation. 
 
 A shipwright, therefore, to whom the boat has been de- 
 livered by the owner, while it remains in his possession, has 
 13 
 
98 CHATTEL MORTGAGES. 
 
 a lien thereon for necessary repairs, which lien is superior to 
 that of the mortgage. 
 
 There is no distinction in this respect between a steam- 
 boat, or a vessel navigating the ocean, or navigable waters 
 connected therewith, and a canal boat. 
 
 Scott V. Delahunt, 65 N. Y. 208. 
 
 In the case of The Phoenix Iron Co. v. The Vessels, 43 
 Hun, 429 (which was a proceeding instituted under chapter 
 482, of the Laws of 1862, providing for the collection of 
 demands against ships and vessels), it was shown that 
 between August, 1880, and October, 1884, the plaintiff 
 sold and delivered, at Newburgh, N. Y., to the firm of 
 Ward, Stanton & Co., shipbuilders at that place, iron 
 work designed to be used by the said firm, in construct- 
 ing two iron ferry boats for the Hoboken Land and 
 Improvement Co. (a New Jersey corporation), under a 
 contract entered into by the said firm, by which it agreed 
 to build the vessels for a fixed sum. On November 15, 
 1884, the firm being unable to complete the vessels, con- 
 veyed them to the corporation in an extremely unfinished 
 condition, and shortly thereafter made a general assignment 
 for the benefit of creditors. On November 21, 1884, the 
 firm inclosed by letter, notes payable at a future time, for 
 the iron work purchased of the plaintiff, although no credit 
 was provided for by the agreement for its sale. These notes 
 were accepted by the plaintiff in ignorance of the condition 
 of the firm and of the change in the title to the vessels. 
 
 Held, that such acceptance did not deprive the plaintiff 
 of the lien upon the vessels to which they were entitled by 
 the act of 1862. 
 
 That the materials furnished by the plaintiff were a basis 
 for a lien, although they were not actually put into the 
 vessel at the time the action to enforce the lien was com- 
 menced. 
 
OF LIENS FOR REPAIRS AND SUPPLIES. 99 
 
 A canal boat is a vessel within the meaning of the act of 
 1862. 
 
 Crawford v. Collons, 45 Barb. 269. 
 King V. Greenway, 71 N. Y. 413. 
 Emmons v. Wheeler, 3 Hun, 545. 
 Nelson v. Yates, 37 Hun, 52. 
 
 There is no lien for services rendered under the act of 
 1862, in raising a sunken canal boat. 
 
 Nelson v. Yates, supra. 
 
 One engaged in repairing and putting new machinery into 
 a steam canal boat, is a builder within the meaning of the act 
 providing for the collection of demands against ships and ves- 
 sels, and a lien is created under said act, in favor of one fur- 
 nishing materials to such builder for the work. Said act, so 
 far as it creates and provides for liens upon boats constructed 
 for, and navigating the canal, or the interior waters of the 
 State, is not violative of the Constitution of the United 
 States, but is valid. 
 
 King V. Greenway, 71 N. Y. 413. 
 
 Admiralty jurisdiction does not extend to contracts relat- 
 ing to a vessel wholly engaged in the internal commerce of 
 a State, and no maritime lien or claim can be founded on 
 such contract ; and the United States courts are wholly 
 without jurisdiction in such cases. 
 
 Fralick v. Betts, 13 Hun, 632. Citing 
 Maguire v. Card, 21 How. (U. S.) 248. 
 Allen V. Newberry, 21 How. 244. 
 Brookman v. Hamill, 43 N. Y. 554. 
 
 When a domestic vessel is libelled for supplies furnished 
 her, and is sold before the expiration of the thirty days 
 
100 CHATTEL MORTGAGES. 
 
 within which the State laws require specifications to be filed, 
 and no specifications are filed at any time, held, that the 
 proceeds in court should be distributed according to the liens 
 upon her at the time the libels were filed. 
 
 The Niagara, 31 Fed. Rep. 163. 
 
 III. Of Validity. 
 
 In a suit in regard to the validity of a mortgage of a ves- 
 sel, recorded in the office of a collector of customs, the 
 mortgagee must show that the vessel was of such a charac- 
 ter, or was owned in such away, that she became a vessel of 
 the United States; and if the vessel be employed in the 
 coasting trade, he must show that she was both enrolled and 
 licensed. 
 
 Best V. Staple, 61 N. Y. 71. 
 
 As between the parties, and as against persons having act- 
 ual notice, a mortgage of a vessel is good without acknowl- 
 edgment and record. 
 
 Parker Mills v. Jacot, 8 Bosw. 161. 
 Moore v. Simonds, 100 U. S. 145. 
 
 A bill of sale of a vessel, absolute in its terms, like such 
 a bill of sale of any other chattels, may be shown by oral 
 evidence to be only a mortgage. 
 
 Morgan v. Shinn, 15 Wall. 105. 
 
 Upon default in a mortgage of a ship, the legal title of 
 the mortgagee becomes absolute, just as in the case of a 
 mortgage of other personal property. To extinguish the 
 equity of redemption, the mortgagor must resort either to 
 a court of equity, or to statutory remedies for foreclosure. 
 
 Bogart V. The John Jay, 17 How. (U. S.) 399. 
 
OF PRIORITY BETWEEN LIENS AND MORTGAGES. loi 
 
 The only purpose of requiring a chattel mortgage of a 
 vessel to be acknowledged, is to authenticate it for record. 
 
 Moore v. Simonds, loo U. S. 147. 
 
 The mortgagor is not personally liable unless the mort- 
 gage contains a covenant on his part to pay the debt. 
 
 Jenkins v. Wheeler, 2 Abb. App. Dec. 445. 
 
 The act of 1862, providing for the collection of demands 
 against vessels, so far as it gives a lien for supplies furnished 
 to, or repairs made upon, a vessel engaged in foreign com- 
 merce is unconstitutional, as it infringes upon the exclusive 
 jurisdiction of the Federal courts. 
 
 Brookman v. Hamill, 43 N. Y. 554. 
 
 In re The Steamboat Josephine, 39 N. Y. 19. 
 
 Poole V. Kermit, 59 N. Y. 554. 
 
 " No mortgage of any vessel, or of any other goods or 
 chattels, made as security for any debt, in good faith, and 
 for a present consideration, and otherwise valid, and duly 
 recorded pursuant to any statute of the United States, or of 
 any State, shall be invalidated or affected by an assignment 
 in bankruptcy." 
 
 U. S. Revised Statutes, § 5052. 
 
 IV. Of Priority between Liens and Mortgages. 
 
 Liens for advances made in a foreign port to pay for nec- 
 essary repairs and supplies, have priority over existing mort- 
 gages to creditors at home ; such advances being for the 
 security and protection of the vessel, they are for the benefit 
 of the mortgagees, as well as of the owners. 
 
 The Emily Souder, 17 Wall. 666. 
 
I02 CHATTEL MORTGAGES. 
 
 A mortgage, although duly recorded, is inferior to any 
 strictly maritime lien ; it is also inferior to a valid bottomry 
 bond. 
 
 Baldwin v. The Bradish Johnson, 3 Woods, 582. 
 
 The Da Smet, 10 Fed. Rep. 483. 
 
 The lien given by chapter 482, of the New York Laws of 
 1862, is enforceable in admiralty, and must prevail over the 
 title of a purchaser of the vessel who has bought her without 
 notice of the lien. 
 
 The Unadilla, 8 Ben. 478. 
 
 A lien for necessary repairs upon a canal boat is superior 
 to the lien of a prior mortgage. 
 
 Scott V. Delahunt, 65 N. Y. 128. 
 
 The statute of 1862 provides that a debt for work done, or 
 materials furnished, or for provisions and stores furnished to 
 a ship, shall be a lien upon such vessel, and shall be preferred 
 to all other liens thereon except mariners' wages. 
 
 This provision of said act is valid. 
 
 In re Josephine, 39 N. Y. 21. 
 Nelson v. Yates, 37 Hun, 56. 
 
 V. Of Bottomry and Respondentia. 
 
 " A bottomry bond is a bond given for a loan of money, 
 upon the security of a vessel and its accruing freight ; its 
 payment being dependent upon maritime risks, to be borne 
 by the lender. The condition of the bond is the safety of 
 the hypothecated vessel. _ The loan is on condition, that if 
 the vessel hypothecated be lost by the perils of the sea, the 
 lender shall not be repaid. It is for a specified voyage more 
 ordinarily, but sometimes for a specified time ; and as it 
 
OF BOTTOMRY AND RESPONDENTIA. 103 
 
 substitutes the risk of the adventure to the unconditional 
 responsibility of a borrower, the rate of interest is univer- 
 sally (though not of necessity) such as would, without that 
 risk, be usurious. The lender becomes to that amount an 
 insurer." 
 
 Verplank, J,, in White v. Cole, 25 Wend. 514. 
 
 " Bottomry is a contract by which the owner of a ship 
 hypothecates or binds the ship as security for the repay- 
 ment of money advanced for the use of the ship. It is de- 
 fined by Marshall, to be a contract in the nature of a mort- 
 gage of a ship, on which the owner borrows money to en- 
 able him to fit out the ship, or to purchase a cargo for a 
 voyage proposed, and he pledges the keel or bottom of the 
 ship, pars pro toto, as a security for the repayment ; and it 
 is stipulated, if the ship should be lost in the course of the 
 voyage, by any of the perils enumerated in the contract, 
 the lender also shall lose his money ; but if the ship should 
 arrive in safety, then he shall receive back his principal and 
 also the interest agreed upon, generally called marine in- 
 terest." 
 
 2 Marshall Insurance, 733. 
 
 "An essential character of bottomry is, that the money 
 lent is at the risk of the lender, during the voyage, and 
 that the repayment thereof depends on the event of the 
 successful termination of the voyage. It is the very essence 
 of the contract, that the lender runs the risk of the voyage, 
 and that both principal and interest be at hazard. If the 
 vessel -is lost, at the time the money becomes payable; the 
 lender cannot recover either principal or interest, and where 
 her arrival in safety entitles him to repayment, he is con- 
 fined to the security of the ship, and cannot enforce his 
 claim, personally, against the owner beyond the value of 
 the pledged fund which may come into his hands. It is no 
 bottomry, where the money is payable at all events ; for the 
 principal and extraordinary interest reserved is not put ab- 
 solutely at hazard by the perils of the voyage. The lender 
 
104 CHATTEL MORTGAGES. 
 
 must run the maritime risk, to earn the maritime interest. 
 If, by the terms of the contract, the owner binds himself, 
 personally, to repay the loan, or there be collateral security 
 for its absolute repayment, it is not a bottomry loan. Re- 
 payment does not depend upon the contingency of the safe 
 arrival of the ship, but whether lost or not, it is to be made, 
 and there is no risk taken." 
 
 Wright, J., in Braynard v. Hoppock, 32 N. Y. 572. 
 
 A bottomry bond is valid, although' it includes the per- 
 sonal liability of the master. The master is personally 
 liable on the bond, in such case, for the debt secured ; but 
 not unless the vessel arrives. 
 
 The master may bind the freight, as well as the vessel, in 
 such a bond, by express stipulation ; but in the absence of 
 such a stipulation, the bond will create no lien upon the 
 freight, directly. The master of a vessel has a lien on the 
 cargo and freight, for advances made or liabilities incurred 
 by him, in a foreign port, for the repairs and supplies of the 
 vessel. 
 
 Kelly V. Gushing, 48 Barb. 269. 
 
 The fact that the bottomry bond not only pledges the 
 ship, but, in terms, "grants, bargains, and sells" her, does 
 not essentially vary its character or operation. It must still 
 be considered a contract of bottomry. 
 
 Robertson v. United Ins. Co., 2 Johns. Cas. 250. 
 
 A bottomry bond is entitled to priority to liens for sup- 
 plies and repairs, where, prior to its execution, the owner of 
 the vessel was notified to assent to the bond, or to raise the 
 necessary funds by other means. 
 
 The Thomas Fletcher, 24 Fed. Rep. 375. 
 
RESPONDENTIA. 105 
 
 Where an insurance company, which is authorized to loan 
 upon bottomry, having already insured the vessel, and being 
 unwilling to increase the risk, is applied to, for a loan upon 
 bottomry, it may suspend an amount of the insurance, equal 
 to the bottomry loan, and make such loan, without any vio- 
 lation of law. 
 
 NoTth-western Ins. Co. v. Ferward, 36 N. Y. 139. 
 
 For discussion as to validity of bottomry bonds, see 
 3 Alb. Law Jour. 480. 
 
 Respondentia. 
 
 Respondentia is a loan -of money, on maritime interest, 
 on goods laden on board of a ship, upon the condition that 
 if the goods be wholly lost in the course of the voyage, by 
 any of the perils enumerated in the contract, the lender 
 shall lose his money ; if not, that the borrower shall pay him 
 the sum borrowed, with the interest agreed upon. 
 
 The contract is called respondentia, because the money is 
 lent mainly, or most frequently, on the personal responsibil- 
 ity of the borrower. It differs principally from bottomry, 
 in the following circumstances : bottomry is a loan upon the 
 ship ; respondentia is a loan on the goods. The money is 
 to be repaid to the lender, with maritime interest, upon the 
 arrival of the ship in one case, and of the goods in the 
 other. In most other respects the contracts are nearly the 
 same, and are governed by the same principles. In the for- 
 mer, the ship and tackle, being hypothecated, are liable as 
 well as the borrower ; in the latter, the lender has, in gen- 
 eral, it is said, only the personal security of the borrower. 
 
 If any part of the goods arrive safely at the end of the 
 voyage, the lender is entitled to have the proceeds applied 
 to the payment of his debt. If the loan is made by the 
 14 
 
io6 CHATTEL MORTGAGES. 
 
 master, and not by the owners of the goods, the necessity 
 for the loan and for the hypothecation of the cargo must be 
 clearly shown, or the owners of the goods, and, conse- 
 quently, the goods themselves, will not be bound. The ship 
 and freight are always to be first resorted to, to raise money 
 for the necessity of the ship, or the prosecution of the 
 Voyage ; and it seems that a bond upon the cargo is consid- 
 ered, by implication of law, a bond upon the ship and freight 
 also, and that unless the ship be liable in law, the cargo can- 
 not be held liable. 
 
 Bouvier's Law Diet., page 471. Citing 
 
 The Constancia, 4 Notes of Cases, 285, 512, 518, 677. 
 
 10 Jur. 845. 
 
 2 W. Rob. Adm. 83-85. 
 
 14 Jur. 96. 
 
 See 3 Mas. C. C. 255. 
 
 Respondentia is the loan of money upon merchandise 
 laden on board a ship, the repayment whereof is made to 
 depend upon the safe arrival of the merchandise at the 
 destined port. 
 
 The Brig Atlantic, i Newb. 516 (1885). 
 
 A bottomry or respondentia bond must be recorded at 
 the ofiSce of the collector of customs. 
 
 U. S. Revised Statutes, §§ 4192, 4382. 
 
 Evidence. — The record of a bill of sale, mortgage, hypoth- 
 ecation, or conveyance of a vessel, belonging to a port or 
 place within the United States, recorded in the office of the 
 collector of customs, where the vessel is registered or 
 enrolled, which was acknowledged or proved, before it was 
 recorded, in like manner as a deed to be recorded within 
 the State ; or a transcript of such a record, duly certified by 
 the collector ; is evidence with the like effect as the original. 
 
 Code of Civil Procedure, § 945. 
 
FORMS. 
 
 No. I. 
 
 Common Form of a Chattel Mortgage. 
 
 To all to whom these presents shall come: 
 Know ye, That , of , county of , N. Y., 
 
 indebted unto , of , in the sum of 
 
 dollars, and cents, being for * 
 
 Now FOR Securing the Payment of said debt, and the inter- 
 est thereon from the date hereof, to the said , 
 do hereby sell, transfer and assign to the said , the 
 property described in the following schedule, viz.: 
 
 Said property now being and remaining in the possession of the 
 said , at .** 
 
 Provided always, and this mortgage is on the express condi- 
 tion, that if the said , shall pay to the said , h 
 assigns or representatives, the sum of dollars and 
 cents, with interest thereon as follows, viz.: 
 
 Principal and interest payable at , which the said 
 
 hereby agree to pay, then this transfer to be void and of no 
 effect; *** but in case of non-payment of the said debt and in- 
 terest at the time above mentioned, then the said shall 
 have full power to enter upon the premises of the said part 
 of the first part, or any other place or places where the goods and 
 chattels aforesaid may be, to take possession of said 
 property, to sell the same at public or private sale, and the avails 
 (after deducting all expenses of the taking, and the sale, 
 and keeping of said property) to apply in payment of the above 
 debt; **** and in case the said shall at any time deem 
 said property or debt unsafe, it shall be lawful for to take 
 
io8 FORMS. 
 
 possession of such property, and to sell the same at public or 
 private sale, previous to the time above mentioned for the pay- 
 ment of said debt, applying the proceeds as aforesaid, after de- 
 ducting all expenses for the taking, and the sale and keeping of 
 the said property. And the said mortgagee, his representatives or 
 assigns, may purchase at any such sale, in the same manner, and 
 to the same effect as a person not interested herein. 
 
 If from any cause said property shall fail to satisfy said debt, 
 interest, costs and charges, covenant and agree to pay 
 
 the deficiency. 
 
 In Witness Whereof, have hereunto set hand 
 
 and seal the day of , in the year of our Lord 
 
 one thousand eight hundred and 
 
 Sealed and delivered in the presence of 
 
 (L.S.) 
 
 State of New York, ) 
 County of , \ ss.: 
 
 of \ 
 
 On this day of in the year one thousand eight 
 
 hundred and before me, the subscriber, personally ap- 
 
 peared , to me personally known to be the same person 
 
 described in and who executed the foregoing instrument, and he 
 acknowledged that he executed the same. 
 
 No 2. 
 
 Another Form, Containing Insurance Clause, etc. 
 
 (As in Form i io the asterisk, continuing .■) collateral security for 
 the payment of a certain note made by me, the said 
 (mortgagor) , and bearing even date herewith, and due in 
 
 days from the date hereof, and payable at ; and it 
 
 is further agreed that this mortgage shall be as collateral security 
 for the payment of any judgment into which said note may be 
 merged, together with all cost and disbursements incurred in pro- 
 curing said judgment. (Continue as in Form i to **, then add:) 
 
FORMS. 109 
 
 And I further certify and state that I am the sole owner of the 
 property mentioned in said schedule, and that the same is free and 
 clear of all liens and encumbrances; this statement is made for 
 the purpose of obtaining money on said note. 
 
 And it is further agreed that in case any attachment, levy or 
 other legal process shall become a lien on said property before the 
 maturity of this mortgage, that then and in that case, this mort- 
 gage shall immediately become due and payable. 
 
 And it is further agreed that in case the mortgagor herein shall 
 remove said property from the place where it now is, without the 
 written consent of the party of the second part, that this mort- 
 gage shall at once become due and payable, and the said mortgagee 
 may take immediate possession of said property. 
 
 And it is further agreed that the said mortgagor will keep said 
 property insured in a sum not less than f , and assign the 
 
 policy to the said party of the second part, and in default thereof, 
 the said party of the second part, may effect such insurance, and 
 the cost of said policy may be added to the amount secured by 
 these presents, and such sum so paid shall be a lien upon the said 
 property. 
 
 {^Continue as in Form i to the end.) 
 
 No. 3. 
 
 Mortgage of a Stock of Goods. 
 
 {As in Form i to ** , continuing: ) It is agreed that said 
 
 {mortgagor) , may sell and dispose of said property, 
 
 and apply the proceeds of such sales to the payment of the debt 
 hereby secured; and the said {mortgagor) , does 
 
 hereby covenant and agree that as said stock is sold and disposed 
 of by him, he will apply the proceeds to the payment of such 
 debt ; such sales may be made upon a credit not to exceed 
 days, the said , taking good endorsed paper for said sales, 
 
 which paper the mortgagee agrees to accept and apply upon said 
 debt. 
 
 And it is further agreed that said , may use a part of 
 
 the avails of such sales not to exceed $ , to replenish and 
 
 freshen the said stock, but it is agreed that in such case, the sub- 
 
no FORMS. 
 
 stituted stock shall take the place, and be in stead of, the stock so 
 sold ; and that this mortgage shall be renewed every days, 
 
 and which renewal mortgage shall embrace and include such sub- 
 stituted stock. 
 
 It is the express understanding that no part of said stock, or of 
 the proceeds of such sales, shall be used or disposed of by the 
 said , except as hereinbefore set forth. 
 
 {Continue as in Form i to the end.^ 
 
 No. 4. 
 Chattel Mortgage Farm Lease. 
 
 {As in ordinary lease, continuing .•) The said {tenant") 
 
 , agrees that all the personal property on said land or 
 hereafter brought on, shall be, and the same hereby is bound to 
 said , for the faithful performance of all the covenants 
 
 contained in this lease, and as collateral security for all the rent 
 due and to become due for said land, and for any and all sums now 
 or hereafter to be due, or owing from said , to said 
 
 and said , also hereby agrees that all said personal prop- 
 
 erty, and the crops raised and to be raised on said land, and the 
 cows and all the increase thereof, shall be bound to, and hereby 
 are bound to said , as collateral security for the faithful 
 
 performance of all the covenants contained in this lease, and for 
 the payment of said rent due, and to become due, and for any and 
 all sums now due or hereafter to become due and owing from 
 said , to said , for any cause whatever, and for 
 
 this purpose said , shall have the title to all said personal 
 
 property of whatever kind raised, made, produced, kept, put or 
 used upon said farm, and he shall have the right of possession 
 thereof at any time, and such title and right of possession is vested 
 in said as collateral security for the faithful performance 
 
 of all the covenants contained in this lease including the payment 
 of rent due, and to become due, and any and all sums of money 
 owing or to be hereafter due and owing from said , to 
 
 said 
 
 {Continue as in ordinary lease.) 
 
FORMS. Ill 
 
 No. 5. 
 
 Mortgage for Future Advances. 
 
 (As in Form i to the asterisk, continuing •)■ This grant is intended 
 as a security for the payment of any debt, demand or liability now 
 incurred or held by the said , or which may hereafter be 
 
 incurred or held by the said (mortgagee) , on ac- 
 
 count of, or against the said (mortgagor) , and also 
 
 a security against any liability of said (mortgagee) , by 
 
 reason of, or on account of any endorsement or undertaking which 
 has been, or may hereafter be made or incurred by said 
 (mortgagee) , for said (mortgagor) , and 
 
 this mortgage is to be a continuing security for the above, and all 
 costs and expenses to the amount f 
 
 (Continue as in Form i, between *** and ****, as follows :) And 
 it is further agreed that upon default being made by said , 
 
 to pay any debt or obligation held by said (mortgagee) 
 
 , or on which he might be liable, when presented for 
 payment, or at maturity said , may take possession of the 
 
 said property, and for that purpose shall have full power to enter 
 upon the premises of the said party of the first part, or other place 
 where the goods and chattels aforesaid may be, and may sell the 
 same at public or private sale at such time and on such terms, 
 and in such manner as said may deem most advantageous. 
 
 (Continue as in Form i to the end.) 
 
 No. 6. 
 Mortgage on Machinery. 
 
 (As in Form i to **, continuing :) It is an express condition of 
 this mortgage, and it is agreed that said machinery above described, 
 shall be and remain personal property, until the notes above de- 
 scribed are fully paid, notwithstanding the manner in which such 
 machinery, or any part thereof, shall be affixed to the realty. 
 
 (Continue as in Form i to the end. ) 
 
112 FORMS. 
 
 No. 7. 
 
 Power of Attorney to Foreclose. 
 
 I, do hereby nominate and appoint , as and for 
 
 my true and lawful attorney, for me and in my name to take pos- 
 session of the goods and chattels, described in the within mort- 
 gage {or, if the power to foreclose is written on a different paper, 
 describe the mortgage'), and to foreclose the said mortgage by a sale 
 of said goods and chattels, in conformity with the power therein 
 contained, and I authorize my said attorney to do all acts for me 
 and in my behalf, which I, under the said power and under said 
 mortgage could lawfully do, and for that purpose to procure the 
 aid or assistance of any person or persons. 
 
 And I also covenant with the said , that the sum of 
 
 dollars, and interest thereon from the day of , 
 
 18 , is now justly owing to me on the said mortgage, that I 
 am the lawful owner and holder thereof, and that I will indemnify 
 and hold him harmless for any acts done by him in carrying out 
 and executing the power hereinbefore granted to him. 
 
 Dated this day of ,18 
 
 {Signed) 
 
 .(L. s.) 
 
 No. 8. 
 
 Complaint to Foreclose Under the Code of Civil Pro- 
 cedure. 
 
 SUPREME COURT— Chemung County. 
 
 Henry L. Rosenbaum 
 
 agst. 
 
 George W. Bills. 
 
 The plaintiff above named complaining of the defendant herein 
 for a cause of action alleges. 
 
FORMS. 113 
 
 That heretofore and on the first day of November, A. D. 1888, 
 one George W. Bills, the owner of the chattels therein described, 
 made, executed and delivered to one George Doane an instru- 
 ment in writing of which the following is a copy : 
 
 " To all to whom these presents shall come, know ye, that I, 
 George W. Bills, of Southport, Chemung county, State of New 
 York, am indebted unto George Doane, of Elmira, Chemung 
 county, New York, in the sum of one hundred dollars, being for 
 the purchase-price of one horse. Now for securing the payment 
 of the said debt, and the interest thereon from the date hereof, 
 to the said George Doane, I do hereby sell, assign and transfer to 
 the said George Doane, the property described in the following 
 schedule, viz.: 
 
 One bay horse, being the same this day purchased of George 
 Doane, one red cow, one lumber wagon; said property now being 
 and remaining in the possession of the said George W. Bills: 
 Provided always, and this mortgage is on the express condition 
 that if the said George W. Bills, shall pay to the said George 
 Doane the sum of one hundred dollars and interest thereon as 
 follows: In ninety days from the date hereof, which the said 
 George W. Bills hereby agrees to pay, then this transfer to be 
 void and of no effect; but in case of non-payment of the said 
 debt and interest at the time above mentioned, then the said 
 George Doane shall have full power to enter upon the premises of 
 said party of the first part, or any other place or places where the 
 goods and chattels aforesaid may be; to take possession of said 
 property; to sell the same at public or private sale, and the avails 
 (after deducting all expenses of the sale and keeping of the said 
 property) to apply in payment of the above debt, and in case the 
 said George Doane shall at any time deem said property or 
 debt unsafe, it shall be lawful for him to take possession of said 
 property, and sell the same at public or private sale, previous to 
 the time above mentioned, for the payment of said debt, applying 
 the proceeds as aforesaid, after deducting all expenses of the sale 
 and keeping of the said property. And the said mortgagee, his 
 representatives or assigns, may purchase at any such sale, in the 
 same manner, and to the same effect, as a person not interested 
 herein. If from any cause said property shall fail to satisfy said 
 debt, interest and costs and charges, I covenant and agree to 
 pay the deficiency. 
 15 
 
114 FORMS. 
 
 In witness whereof, I have hereunto set my hand and seal the 
 third day of November, in the year of our Lord one thousand 
 eight hundred and eighty-five. 
 
 GEORGE W. BILLS, (l. s.) 
 
 That said mortgage was duly filed in the town clerk's office of 
 the town of Southport, where the defendant resided, at the time 
 of the execution and filing thereof, on the zd day of November, 
 1888, and where said chattels were situated at the time of such 
 execution and filing; that the said instrument was duly sold, trans- 
 ferred and assigned to this plaintiff by the said Doane on the first 
 day of December, 1888, and he is now the holder and owner 
 thereof; that the sum secured by said mortgage is due and payable, 
 and that the same remains unpaid, and there is now due and 
 secured and owing by and on said mortgage, the sum of one hun- 
 dred dollars, with interest from the first day of November, 1888. 
 That said mortgage became due and payable on the fourth day of 
 February, 1889, and that no part thereof has been paid, although 
 the same has been duly demanded.* 
 
 Wherefore plaintiff demands judgment, for the foreclosure of 
 said mortgage, and sale of the chattels therein described, by a 
 proper person to be designated by the court, and that the proceeds 
 be applied to the payment of the amount due plaintiff and the 
 costs of the action, and that plaintiff have judgment against the 
 said defendant for any costs and deficiency which cannot be sat- 
 isfied out of the fund realized from the sale of said chattels, after 
 first paying plaintiff the amount due him and secured thereby. 
 DIX W. SMITH, Plaintiff's Attorney. 
 
 Elmira, N. Y. 
 
 {Add verification^ 
 
 {If the property is not in the possession of the mortgagor, continue 
 from the * as follows): 
 
 That the defendant. Bills, has disposed of the property described 
 in said mortgage, and the said property is now claimed to be 
 owned by the defendant , who has refused to deliver 
 
 the same to the possession of this plaintiff, although the possession 
 thereof has been demanded from him. 
 
FORMS. 115 
 
 No. 9. 
 Bond. 
 
 SUPREME COURT— Chemung County. 
 
 ■ ^ 
 
 Henry L. Rosenbaum 
 George W. Bills. 
 
 Whereas, the above-named Henry L. Rosenbaum, as plaintiff, 
 has commenced, or is about to commence, an action by summons 
 for the foreclosure of a lien on a chattel, against the above-named 
 defendant, and has made, or is about to make, application for a 
 warrant to seize such chattels described in the complaint, accord- 
 ing to the provisions of the Code of Civil Procedure. 
 
 Now, therefore, we, W. J. Roy, of Southport, by occupation a 
 farmer, and Jacob Hevener, of the city of Elmira, by occupation 
 a merchant, do hereby jointly and severally undertake, promise 
 and agree to and with the said defendant, that if the defendant 
 recovers judgment, or if the warrant is vacated, the plaintiff will 
 pay all costs which may be awarded to said defendant, and all 
 damages which he may sustain by reason of the said warrant, 
 not exceeding two hundred and fifty dollars. 
 
 W. J. ROY. 
 
 JACOB HEVENER. 
 
 Dated February 8, 1889. 
 
 (Add acknowledgment, justification and approval.^ 
 
 No. 10. 
 
 Affidavit for Warrant. 
 
 ( Title as before^ 
 
 Chemung County, ss.: 
 
 Henry L. Rosenbaum of the city of Elmira, in said county, 
 being duly sworn says, that he is the owner and holder of a chattel 
 mortgage given by one George W. Bills to George Doane, Novem- 
 ber I, 1888, and filed in the town clerk's oflfice of the town of 
 
ii6 FORMS. 
 
 Southport, where said mortgagor then resided, and where the 
 chattels therein described were then located, on the first day of 
 November, 1888, for the purpose of securing the payment of the 
 sum of one hundred dollars with interest thereon in three months 
 from the date thereof; that the property pledged in and by said 
 mortgage consists of one bay horse, one red cow, one lumber 
 wagon; that the whole of said sum is due with interest thereon, 
 and remains unpaid, and this deponent has brought this action to 
 foreclose the lien of said mortgage ; that the property described 
 in said mortgage is now in the possession of the defendant 
 the said , claiming to be the owner thereof, and that said 
 
 , refuses to deliver the possession of the said property to 
 this plaintiff, although the same has been duly demanded; that 
 the value of said property is one hundred dollars. 
 
 That the said defendants. Bills and , reside at the town 
 
 of Southport, in the county of Chemung, and said property is now 
 at said town. 
 
 Deponent further says that no previous application has been 
 made for a warrant to seize said chattels in this action. 
 
 Subscribed and sworn to before me, 
 this day of , 1889 
 
 ■I 
 
 No. II. 
 
 Warrant. 
 
 The People of the State of New York to the Sheriff of the 
 County of Chemung : 
 
 Whereas, In an action brought in this court, an application 
 has been made to the justice granting this warrant, by Henry L. 
 Rosenbaum, plaintiff, for a warrant to seize and safely keep the 
 chattels hereinafter described, to abide the final judgment in said 
 action, in which said Henry L. Rosenbaum is plaintiff, George W. 
 Bills, and , defendant ; and it appearing by affidavit to 
 
 the satisfaction of the justice granting this warrant, that a cause 
 of action such as is specified in section 1737 of the Code of Civil 
 Procedure, exists in favor of the plaintiff and against the defend- 
 ants, to foreclose a lien for the sum of one hundred dollars, with 
 interest thereon from November 1, 1888, upon said chattels, and 
 
FORMS. 117 
 
 that the plaintiff is not in possession of said chattels, and the 
 plaintiff having given the undertaking required by law : 
 
 Now, you are hereby commanded to seize the following chattels, 
 to wit : 
 
 {^Specify chattels^ 
 
 Being the chattels described in the complaint in this action, or 
 so much thereof as may be found in your county, and to safely 
 keep the same to abide the final judgment in the action, and that 
 you proceed herein in the manner, and make your return within 
 the time required of you by law. 
 
 Given under the hand of one of the justices of the Supreme 
 Court, at the chambers in the city of Elmira, this day of 
 
 , 1889. 
 
 WALTER LLOYD SMITH, 
 
 Justice of the Supreme Court. 
 Dix W. Smith, 
 
 Plaintiff 's Attorney, Elmira, N. Y. 
 
 No. 12. 
 
 Assignment of Mortgage. 
 
 This instrument, made this day of ,188 , 
 
 between , of the , of , of the first part, 
 
 and , of of the second part; 
 
 WITNESSETH, That the part of the first part, for a good and 
 valuable consideration to in hand paid by the part of 
 
 the second part, ha sold, assigned, and transferred, and do 
 
 hereby sell, assign, and transfer to the part of the 
 
 second part, a certain chattel mortgage bearing date the 
 day of ,188 , made by 
 
 And filed in the clerk's office of county, on the 
 
 day of 188 , at o'clock m., together 
 
 with the debt thereby secured, and all sums of money due and to 
 grow due thereon. 
 
ii8 FORMS. 
 
 And the part of the first part hereby covenant that there 
 is due on said mortgage, the sum of 
 
 In Witness Whereof, The part of the first part, ha 
 
 hereunto set hand and seal the day and year first 
 
 above written. 
 
 State of New York, ) 
 County of ) " 
 
 On this day of , in the year one thousand eight 
 
 hundred and eighty , before me, the subscriber, person- 
 
 ally appeared to me personally known to be the same 
 
 person described in and who executed the within instrument, 
 and he acknowledged that he executed the same. 
 
 No. 13. 
 
 Satisfaction of Mortgage. 
 
 Do Hereby Certify, That a certain chattel mortgage bear- 
 ing date the day of , one thousand eight hundred 
 and , made and executed by 
 
 and filed in the 
 office of the clerk of the of , on the day 
 
 of , in the year one thousand eight hundred and , 
 
 at o'clock minutes m., is with the debt 
 
 thereby secured, fully paid and satisfied. 
 
 And I hereby consent that the same be discharged of record. 
 
 Dated the day of ,188 
 
 ■{If mortgage is acknowledged, add acknowledgment^ 
 
 No. 14. 
 
 Statement of Mortgagee on refiling Chattel Mortgage. 
 
 I, , the mortgagee within named, do certify and state 
 
 that there remains due and unpaid on the mortgage of which the 
 
FORMS. 119 
 
 foregoing (or within) is a true copy, the sum of dollars, 
 
 and interest thereon from the day of 188 , which 
 
 sum is the amount of my interest in the property described in said 
 mortgage claimed by me by virtue thereof. 
 Dated this day of , 188 . 
 
 No. 15. 
 
 Notice of Sale under Chattel Mortgage. 
 
 By virtue of a chattel mortgage, executed by , to 
 
 , dated on the day of ,188 , and which was 
 
 duly filed in the office of the clerk of the , of , 
 
 on the day of , 188 , I will expose for sale at 
 
 public auction at , in the said of , on the 
 
 day of , 188 , at o'clock, in the fore- 
 
 noon of that day, the following goods and chattels, to wit : 
 {Specify chattels.) 
 
 Dated the day of , 188 . 
 
 (Signed) 
 
 Mortgagee's Agent. 
 
INDEX. 
 
 [Reference is to Pages.] 
 
 Acceptance and Delivery. page. 
 
 delivery is question for the jury 12 
 
 are essential to validity of mortgage . 13 
 
 may be by one of several mortgagees 13 
 
 Accessions. 
 
 substituted articles sometimes become subject to mortgage, 46 
 
 47 
 Acknowledgment. 
 
 mortgage of vessel must be acknowledged 86 
 
 mortgage need not be acknowledged 4 
 
 Action. 
 
 in equity lies to foreclose mortgage 72 
 
 may be brought to foreclose under Code 75, 76 
 
 Agent. 
 
 may execute chattel mortgage 6 
 
 may make statement upon refiling 28 
 
 selling mortgaged property liable to mortgagee 67, 68 
 
 Assignee. 
 
 for benefit of creditors, cannot avoid mortgage because not 
 filed 24 
 
 Assignee in Bankruptcy. 
 
 may show mortgage fraudulent 60 
 
 Assignment. 
 
 mortgage may be assigned 78 
 
 of the debt carries mortgage 78 
 
 of chattel mortgage, need not be filed 79 
 
 assignee takes subject to equities 80 
 
 otherwise, when mortgage given to secure negotiable 
 
 instrument 79 
 
 16 
 
122 INDEX. 
 
 Attachment and Execution. page. 
 
 mortgagor's interest subject to, when 62, 63, 64 
 
 mortgaged property how sold under 65, 66 
 
 mortgagor's interest may be sold under 62 
 
 where mortgagee has immediate right of possession, prop- 
 erty cannot be sold under 63 
 
 may be sold under, until equity of redemption is foreclosed, 63 
 cannot be sold under, unless mortgagor has right of pos- 
 session for definite period 64 
 
 Bill of Sale. 
 
 becomes mortgage, when 2, 3 
 
 of vessel, becomes mortgage when 100 
 
 of vessel, must be filed 85 
 
 Canal Boats. 
 
 filing of mortgages on 16 
 
 Code of Civil Procedure. 
 
 action to foreclose may be brought under 72 
 
 Conditional Sale. 
 
 chattel mortgage is not a i, 3 
 
 Consideration. 
 
 must be legal and valid 34 
 
 a pre-existing debt is not a sufficient 33 
 
 Conflict of Laws 36) 37 
 
 Conversion. 
 
 of property by the mortgagor 66, 67 
 
 by the mortgagee. 73 
 
 Corporation. • 
 
 may make chattel mortgage 7 
 
 Creditors. See Filing and Refiling. 
 
 Crops. 
 
 liens upon, with power of sale, a mortgage 48, 49. 5° 
 
 liens upon must be filed 5° 
 
 See Future Property. 
 
 Deficiency. 
 
 action to recover, when maintainable 3, 73 
 
INDEX. 123 
 
 Date. PAGE, 
 
 the true, may be shown by oral evidence 13 
 
 Delivery. See Acceptanck and Delivery. 
 
 is essential to constitute a valid mortgage 13 
 
 Danger Clause. 
 
 possession of, under, may be taken by mortgagee 63, 70 
 
 Debt. 
 
 mortgage may be for future 9 
 
 purchaser under execution may attack validity of 61 
 
 not cancelled by giving mortgage for 53, 54 
 
 assignment of mortgage without , 78 
 
 statement of, on refiling 29, 30 
 
 tainted with usury makes mortgage void 35 
 
 Default. 
 
 mortgagee's title becomes absolute upon 2 
 
 mortgage should be refiled although there has been 31 
 
 mortgagee can take possession upon 69 
 
 default in one payment makes the whole amount due 71 
 
 Description of Property. 
 
 oral evidence may be given to correct 10 
 
 general rule as to 10 
 
 sufficiency of 11 
 
 general, when sufficient 11 
 
 general, when not sufficient 11 
 
 Demand. 
 
 mortgage payable upon 63, 64 
 
 Discharge of Mortgage. See Payment and Satisfaction. 
 
 Estoppel 34 
 
 Evidence. 
 
 may be given to correct erroneous description 10 
 
 may be given to identify the articles 10 
 
 if mortgage is acknowledged, it becomes evidence same as 
 
 deed 5 
 
 of record of mortgage on vessel 106 
 
124 INDEX. 
 
 Execution. page. 
 
 where mortgagor has right of possession, property can be 
 
 sold under 62 
 
 must be for a definite time 63 
 
 mortgaged property, how sold under 65 
 
 when mortgaged property cannot be sold under 62 
 
 execution of mortgage need not be under seal 4 
 
 need not be acknowledged 4 
 
 Future Property. 
 
 mortgage upon, valid between the parties 8 
 
 must have actual or potential existence 8 
 
 future crops may be mortgaged 8, 48, 50 
 
 future products of a dairy may be mortgaged 9 
 
 mortgage for future indebtedness valid 9 
 
 Filing. 
 
 where filed 14 
 
 object of statute, requiring 15 
 
 is not fraudulent because not filed 15 
 
 where filed on canal boat 16 
 
 on vessel, where filed 16 
 
 given by joint-stock company, where filed 16 
 
 must be filed where mortgagor resides, if resident 16 
 
 if non-resident, where the property is located 14 
 
 given by partners, must be filed where they severally re- 
 side 17 
 
 delivery to clerk while absent from office, not a 19 
 
 no time prescribed for 19 
 
 delivery to person in charge of clerk's office, a sufficient. . 19 
 
 error of clerk in 20 
 
 clerk's duty as to 20 
 
 a copy is a sufficient 20 
 
 mortgage withdrawn from files 20 
 
 mortgage not absolutely void for omission to file 21 
 
 as to a purchaser with notice 21 
 
 valid between the parties without 21 
 
 void as to creditors without 22 
 
 creditor, to take advantage of omission, must have execu- 
 tion 22 
 
 leases for years need not be filed 23 
 
 general assignee cannot take advantage of omission 24 
 
 chattel mortgage lease must be 24 
 
 is notice to one who purchases within the year 26 
 
INDEX. 125 
 
 Fixtures. 
 
 PAGE. 
 
 what are , 54 
 
 tests determining what are 54 
 
 between vendor and vendee, what are 55 
 
 when machinery becomes a fixture 55, 56, 57 
 
 between landlord and tenant, what are 57 
 
 what is covered by the term appendages 59 
 
 examples of 57.58, 59 
 
 Foreclosure. 
 
 under power in the mortgage 69. 7°, 7i 
 
 mortgagee may take possession and sell although not due. . 69 
 
 must foreclose to extinguish equity of redemption . . 70 
 
 may bring either legal or equitable action to foreclose 77 
 
 mortgagee may purchase at sale under 70 
 
 no warranty of title is implied against mortgagee at sale 
 
 under 75 
 
 under Code of Civil Procedure 75, 76 
 
 Forms. 
 
 no particular form of words required 3 
 
 may be by parol 4 
 
 may be in form of bill of sale 5 
 
 common form of chattel mortgage. ... 1 107 
 
 form containing insurance clause, etc 108 
 
 mortgage of stock of goods 109 
 
 chattel mortgage farm lease • no 
 
 mortgage for future advances in 
 
 mortgage on machinery in 
 
 power of attorney to foreclose mortgage 112 
 
 complaint to foreclose under Code of Civil Procedure 113 
 
 undertaking in action 115 
 
 warrant to seize chattel , 116 
 
 assignment of chattel mortgage 117 
 
 satisfaction of mortgage 118 
 
 statement of mortgagee on refiling mortgage 118 
 
 notice of sale under foreclosure 119 
 
 Fraud. 
 
 arising from permission given mortgagor to sell and dis- 
 pose of mortgaged property 42, 44 
 
 presumption of, conclusive unless mortgage filed 39 
 
 is a question for the jury 39 
 
 fraudulent acts of one mortgagee will not affect rights of 
 
 others 36 
 
 possession taken under a fraudulent mortgage is of no avail, 40 
 
126 INDEX. 
 
 Fraud — Continued. page. 
 
 fraud of mortgagor does not affect mortgagee unless he was 
 
 a party 44 
 
 of mortgagor in disposing of property 66, 67 
 
 Porfeiture. 
 
 is an incident of the relationship 73 
 
 Puture Advances. 
 
 mortgage may be given to secure '. 9 
 
 may be continuing security 9 
 
 given for future indebtedness, valid 35 
 
 Grass. 
 
 growing, when may be mortgaged 8 
 
 Growing Crops. 
 
 mortgage of, when valid 41, 49, 50, 51 
 
 Horses. 
 
 lien of livery stable keeper 53 
 
 Hop Poles. 
 
 are covered by mortgage of land 47 
 
 Insurance. 
 
 policy of, the subject of mortgage 9 
 
 mortgage which provides for, valid 46 
 
 Installments. 
 
 mortgage may be payable in 5 
 
 default in, makes whole amount due 71 
 
 Insolvency. 
 
 of mortgagor not sufficient to vitiate 45 
 
 Judgment. 
 
 a chattel mortgage not merged by 53, 54 
 
 Iioase. 
 
 farm lease containing lien clause 48, 49, 50 
 
 to be valid must be filed 48 
 
 Liens. 
 
 for repairs and supplies upon vessels 90, 99 
 
 for advances in foreign port loi 
 
 State courts can enforce certain 91 
 
 statutory provisions for foreclosure of 90 
 
INDEX. 127 
 
 Married Woman. page. 
 
 may make valid mortgage 6 
 
 may be mortgagee of husband 6 
 
 Merger • -.53, S4 
 
 Mingling Goods 52 
 
 Mortgage. 
 
 definition of chattel i 
 
 is a transfer of title 2 
 
 differs from real estate mortgage 2 
 
 no particular form required , 2 
 
 may be by parol 4 
 
 need not be acknowledged 4 
 
 need not be under seal 4 
 
 bill of sale shown to be 5 
 
 may be payable in installments 5 
 
 married woman may give 6 
 
 infant may give 6 
 
 one partner may make 6 
 
 differs from a pledge 3 
 
 Mortgagee. 
 
 may be joint 7 
 
 may take possession, when 69 
 
 may purchase at sale 7° 
 
 safety clause in favor of 69 
 
 Mortgagor. 
 
 right of redemption 83, 84 
 
 sales by, when fraudulent 66, 67 
 
 may sell such title as remains in him 67 
 
 when in default, mortgagee may take possession 6g, 70 
 
 cannot recover payments made when in default 71 
 
 sales made by, when not fraudulent 5'. 52, 67 
 
 has only equity after default 62, 64 
 
 provision that mortgagor may retain possession, valid 45 
 
 agreement that mortgagor will keep property insured, valid, 46 
 
 fraud of, does not affect mortgagee 44 
 
 cannot charge property by second mortgage after default.,. 44 
 
 sales made and money used by, render mortgage void 43 
 
 must give possession or mortgage must be filed 39 
 
 may be non-resident 17 
 
 may be joint-stock company 7 
 
 an infant may be 6 
 
128 INDEX. 
 
 Parcels. 
 
 sale of property in, by sheriflf, unlawful 65, 66 
 
 Parol Evidence. ^ 
 
 may be given to identify articles 10 
 
 competent to fix quality 10 
 
 may be given to correct erroneous description 10 
 
 Parties. 
 
 all persons who are legally competent 5 
 
 married woman 6 
 
 husband.... 6 
 
 agent 6 
 
 infant 6 
 
 partner , 6 
 
 tenant in common 7 
 
 joint-stock company 7 
 
 corporation 7 
 
 joint mortgagees 7 
 
 Partners. 
 
 one partner may make mortgage of partnership property.. 6 
 
 ■without consent of partners 6 
 
 Payment. 
 
 instrument should specify time of 5 
 
 may be in installments ^ 5 
 
 after forfeiture, revests title in mortgagor 80 
 
 operates as discharge of debt 80 
 
 foreclosure does not constitute 81 
 
 Place of Contract. See Conflict of Laws. 
 
 Pledge. 
 
 distinguished from mortgage 3 
 
 Possession. 
 
 must be change of, when mortgage not filed 39 
 
 must be open and actual 39 
 
 unless change of possession, mortgage is presumed fraudu- 
 lent 40 
 
 whether there is change of, is question for jury 39 
 
 right of, under danger clause 69 
 
INDEX. 129 
 
 Power of Sale. page. 
 
 in mortgage does not preclude action 72 
 
 may be exercised, when 69 
 
 mortgagee may purchase at sale 70 
 
 Priority. 
 
 between mortgages simultaneously made 23 
 
 between mortgages and liens for repairs loi 
 
 Purchaser. 
 
 mortgage void as to, unless filed i4i iSi 21 
 
 who is a purchaser in good faith 33 
 
 filing is constructive notice to 21 
 
 an assignee for benefit of creditors is not 24 
 
 can convey good title after expiration of the year 26 
 
 subsequent purchaser means after expiration of year 33 
 
 from mortgagor takes title subject to mortgage 67 
 
 Befiling. 
 
 statement on 27 
 
 where refiled if mortgagor is a resident 27 
 
 if non-resident, where refiled 27 
 
 object of statute requiring 27 
 
 statement on, by whom made 28 
 
 sufiiciency of statement on 28 
 
 the original mortgage with statement is a sufficient 29 
 
 may be made after expiration of the year 31 
 
 must be made each successive year 31 
 
 unless there is a, void against creditors 32 
 
 not necessary against receiver, or purchaser with knowledge, 32 
 
 effect of omission to refile 33 
 
 Recording. See Filing. 
 
 Repairs. See Liens. 
 
 lien for, on vessels, see Ships and Vessels. 
 
 Residence. 
 
 of mortgagor determines place of filing 14 
 
 fact of and not statement in instrument controls 16 
 
 of partners governs filing on partnership property 17, 18 
 
 Redemption. 
 
 equity of, in mortgagor until default 64 
 
 mortgagor has equity of, until foreclosure 69 
 
 to bar equity of, must be sale 69, 70 
 
 16 
 
I30 INDEX. 
 
 Bedemption — Continued. page. 
 
 action for, need not be brought in equity 83 
 
 mortgagor cannot debar Iiimself of, by agreement 83 
 
 measure of damages in action for 83, 84 
 
 who may redeem 84, 85 
 
 Remedies for Enforcing Mortgage. 
 
 mortgagee may bring equity action 72 
 
 may sell under power in mortgage 69 
 
 may recover for deficiency 73 
 
 See Foreclosure. 
 
 Bemoval. 
 
 of mortgagor, effect of 17 
 
 of property, by mortgagor 66 
 
 Sale. 
 
 of property, by mortgagor 66, 67, 68 
 
 by mortgagee 69, 72 
 
 agreement that mortgagor may make, avoids mortgage .... 44 
 
 when agreement for, does not avoid mortgage 46 
 
 Satisfaction. 
 
 statutory provisions as to 82 
 
 need not be acknowledged 82 
 
 satisfaction-piece obtained by fraud may be cancelled 83 
 
 possession taken by mortgagee is deemed satisfaction un- 
 til equity is foreclosed 82 
 
 Schedule. 
 
 is a part of the mortgage 12 
 
 conflict between, and mortgage 12 
 
 oral evidence may be given to explain 12 
 
 Seal. 
 
 not necessary to chattel mortgage 4 
 
 discharge of, need not be under seal 82 
 
 Second Mortgage. 
 
 mortgagor cannot give, after default in first mortgage 44 
 
 when not entitled to priority over first 23 
 
 Ships and Vessels. 
 
 bill of sale or mortgage of, must be filed S5 
 
 void unless filed 85 
 
 what are vessels of the United States 86 
 
 what is a coasting vessel 87 
 
INDEX. 131 
 
 Ships and Vessels — Continued. page. 
 
 canal boat or scow not such vessel 87 
 
 pleasure yacht not within the recording acts 87 
 
 mortgage of registered vessel need not be recorded under 
 
 State laws 87 
 
 where mortgage of vessel must be filed 89 
 
 mortgage on canal boat not filed, void 89 
 
 Statutes of the State of New York 90, 91, 92, 93 
 
 New York Statute of 1862 unconstitutional 95 
 
 no lien upon, for work done in home port 95 
 
 agreement for building and construction of, not maritime . . 95 
 
 what is the home port of 96 
 
 supplies furnished in the home port, duration of lien for, 
 
 depends upon State Statute 97 
 
 no lien for services in raising sunken canal boats 98 
 
 extent of admiralty jurisdiction 99 
 
 bill of sale of, may be shown to be mortgage . . . .• 100 
 
 legal title to, becomes absolute, when 100 
 
 mortgagor not personally liable unless mortgage contains 
 
 covenant to pay 100 
 
 object of requiring chattel mortgage to be acknowledged. . 100 
 
 mortgage of, not affected by assignment in bankruptcy. . . . loi 
 liens for advances made to, have priority over mortgages, 
 
 when loi, 102 
 
 definition of bottomry 102 
 
 bottomry bond, when valid 104 
 
 respondentia, what is 105 
 
 record of mortgage of, when evidence 106 
 
 Statement. See Refiling. 
 
 Stock of Merchandise. 
 
 mortgage upon 44, 46, 47, 52 
 
 Subject Matter 7, 8, 9 
 
 Subsequent Mortgagee. 
 
 if mortgage taken after default, cannot redeem 44 
 
 Subsequent Purchaser. See Purchaser. 
 
 Substitution of Other Property. 
 
 when valid 52 
 
 when invalid 4 
 
 Subsequent Judgment Debtor. 
 
 is entitled to accounting 52 
 
132 INDEX. 
 
 Surplus. PAGE. 
 
 belongs to mortgagor 71 
 
 reservation of, may be valid 51 
 
 Tax Warrant. 
 
 property in possession of mortgagor may be sold under. ... 65 
 
 Tenant in Common. 
 
 may mortgage his interest 7 
 
 Title. 
 
 upon default title becomes absolute in mortgagee 2, 69 
 
 is extinguished by payment 2, 80 
 
 Trees. 
 
 being part of nursery stock may be mortgaged 9 
 
 Usury. 
 
 mortgage tainted with, void 35 
 
 Validity. 
 
 given under duress is void 34 
 
 if tainted with usury is void 35 
 
 may be given to secure present and future indebtedness. . . 35 
 
 what law controls as to 36, 37 
 
 is invalid unless filed or possession is changed 39, 40 
 
 property must be in existence 40 
 
 crops are an exception to the rule 41, 43 
 
 ageement that mortgagor may sell and use moneys, void, 42, 43 
 
 validity of, on stock of merchandise 46 
 
 mere fact of mortgagor's insolvency does not vitiate 45 
 
 agreement to keep property insured, valid 46 
 
 mortgage on after-acquired property may be valid 46 
 
 chattel mortgage farm lease valid 4^) 49) So 
 
 permission given mortgagor to sell, when valid 52 
 
 by whom may be contested 59, 60, 61 
 
 of, on ships and vessels 99, loi 
 
 Vessels. See Ships and Vessels. 
 
 Waiver. 
 
 of forfeiture by payment 2 
 
 Wages. See Ships and Vessels. 
 
 Yacht. 
 
 not within the recording acts of United States 87