Thompson v. Van Vechten

By the judgment appealed from, it is adjudged that the claims of the several parties to the proceeds of the Alida (which may remain after satisfying the sum directed to be paid to and retained by the Receiver,) rank in the order of priority as follows:

1. Abraham Van Vechten’s for $5,545, and interest from July 29th, 1854, as due on the Drew mortgage, (being a mortgage dated October 30th, 1852, and executed by William Masten, N. Elmendorf and M. Schoonmaker to D. Drew.) This was recorded in the custom-house, November 2d, 1852, and was filed in the town where the mortgagors resided, and a copy of it was refiled October 25th, 1853, but not subsequently.

*3892. James H. Elmore’s for $1,000, and interest from the 16th September, 1855, on a mortgage executed to him by John Van Vechten, dated September 15th, 1855, which, on the day of its date, was recorded in the proper custom-house, and was filed in the town where the mortgagor resided.

3. Prosper P. Shaw’s for $12,000—and interest from the 25th February, 1854, on a mortgage of that date executed to Shaw by N. Elmendorf, and recorded at the custom-house in New York city on the day of its date, and filed in the town where the mortgagor resided on the 12th July, 1854, but of which no copy was subsequently filed.

4. Marius Schoonmaker’s for $2,958.77, and interest from the 14th September, 1855, as the amount due on the Westchester County Bank judgments which were recovered the 16th March, 1855, against N. Elmendorf, one DeMeyer and John Van Vechten, executions whereon were issued to the Sheriff of New York on the 17th of March, and levied the same day on the Alida. The judgments were assigned September 15th, 1855, by the bank to M. Schoonmaker, there being then due thereon $2,958.77.

5. The plaintiff, for the amount due on his mortgage and costs. The mortgage is dated the 21st of March, 1855, is executed by John Van Vechten, is conditioned to pay $16,000, and was found to be usurious. This mortgage was not filed in the town where the mortgagor resided, but was recorded in the proper customhouse.

6. Marius Schoonmaker, for the amount due on his judgment against Nicholas Elmendorf, which judgment was entered March 30th, 1855 for $17,931, by confession without action under sections 382, 383 and 384 of the Code, in a form held not to satisfy the requirements of the Code.

7. John Griffiths, for the amount due on his judgment and costs recovered November 15th, 1854, against John Van Vechten and DeMeyer, on which execution was issued and levied November 16th, 1854, by the Coroner of Ulster county; but the execution and levy were subsequently abandoned by direction of Griffiths.

The facts affecting the validity of these claims and their right to priority, will be stated with more particularity (as they were found at Special Term,) before discussing the rules of law by *390which the questions relating to the validity and priority of the claims are controlled.

1. William Masten, N. Elmendorf, and M. Schoonmaker, bought the Alida, of Drew, October 30, 1852, and to secure the payment of their three notes of $10,000 each, given for the purchase-money, executed to Drew a mortgage of the Alida, which mortgage was recorded in the Custom-House in New York, on the 2d of November, 1852, and was also filed in the office of the Clerk of the county of Ulster, his office being in the town in which the mortgagors resided. A copy was again filed on the 25th of October, 1853, with a statement of the amount claimed to be due thereon, and no copy has been since filed.

2. On the 9th of, January, 1854, Hasten and Schoonmaker sold all their interest in the Alida to Elmendorf, and executed to him a conveyance thereof, which was recorded in the Custom-House at New York, on the 25th of April, 1854, and on that day she was enrolled in his name as sole owner.

3. On the 25th February, 1854, Elmendorf mortgaged the boat to Shaw, to secure the payment of $12,000, and interest. The mortgage was filed in the Custom-House in New York City on the same day (February 25th, 1854,) but was not filed in the Clerk’s office in Ulster county, until the 12th of July, 1854, and no copy of it was subsequently refiled. Shaw had notice of the mortgage that had been executed to Drew at the time of the mortgage to himself. In other respects it was taken in good faith and for value parted with on its credit.

4. John Griffiths, the Sheriff of Ulster county, levied upon the Alida, on the 4th of Hay, 1854, under executions issued upon several judgments, some of which were recovered against Elmendorf as sole defendant, and others were recovered against him and other persons as defendants, William Hasten and H. Schoonmaker being defendants in some of such judgments.

5. On the 28th of June, 1854, Drew assigned his mortgage to A. A. Dunlop, who on the same day employed J. T. Stewart, a Deputy Sheriff of New York city and county, to foreclose said mortgage as his agent, and the agent advertised the boat for sale at Kingston, Ulster county, on the 17th of July, 1854, on which day there was due on this mortgage $7,454TW

*3916. The Sheriff of Ulster county had advertised the boat to be sold at Kingston, on the 17th of July, 1854, by virtue of the executions which he had levied on the 4th of May, 1854, and on that day he sold her on such executions to John Van Vechten, for $19,000, he being the highest bidder, and took the note of Van Vechten and one DeMeyer for the amount of the said bid. At the time of and prior to the sale, Dunlop’s said agent announced publicly that after the Sheriff’s sale was made, he should sell the Adida on the Drew mortgage, and said Shaw announced the existence of his mortgage and his claim under it. The sale by the Sheriff of Ulster, was, in terms, subject to the mortgage to Drew, and to all liens prior to those acquired by his levies.

7. On the 17th of July, 1854, immediately after the sale by the Sheriff of Ulster, John Van Vechten paid to Dunlop’s agent $7,454.XW the amount due on the Drew mortgage, and took an assignment of the mortgage and of the demands thereby secured, and on the 29th of July, 1854, John Van Vechten assigned the said mortgage to Abraham Van Vechten, to secure the payment of $5,545, of which amount the latter loaned the former on the 18th July, 1854, the sum of $1,795, and the balance thereof on the 29th July, 1854.

8. John Van Vechten, took possession of the Alida immediately after the sale; and a bill of sale from Elmendorf to him dated February 7th, 1855, was recorded in the New York Custom-House on the 17th of February 1855, and a bill of sale from the Sheriff of Ulster county, to John Van Vechten was recorded in the New York Custom-House on the 20th of March, 1855. It had no date but its execution was proved on the 16th of that month.

9. On the 16th of November, 1854, the Coroner of Ulster county levied upon the boat, an execution in favor of John Griffiths against John Van Vechten and one DeMeyer, issued on a judgment recovered against them on the 15th of said November, for a balance due on the note given by them to Griffiths, for the payment of the sum at which Van Vechten bought the boat at the Sheriff’s sale aforesaid. The boat remained in the Coroner’s possession until the 7th of December, 1854, when John Van Vechten took possession and removed her to New *392York, where she remained and was levied on by the Sheriff of Hew York, on the 17th March, 1855.

10. On the 17th of March, 1855, the Sheriff of Hew York levied on the boat, executions issued on that day, on judgments recovered on the 16th March, 1855, by the Westchester County Bank against John Van Vechten, H. Elmendorf and DeMeyer, and the Alida continued in the possession of the said Sheriff until after this action was commenced, and until the United States Marshal took possession. In the meantime these judgments were assigned to M. Schoonmaker, September 15th, 1855, there being then due thereon $2,958. T\V

11. On the 21st of March, 1855, John Van Vechten mortgaged the boat to George J. S. Thompson, the plaintiff in this suit, to secure the payment of $16,000 and interest. This mortgage was never filed in the town where the mortgagor resided, but was recorded in the Hew York Custom-House. The plaintiff at the time had notice of the Drew mortgage held by Abraham Van Vechten. The mortgage to the plaintiff was given to secure a usurious loan from Thompson to John Van Vechten.

12. On the 30th March, 1855, H. Elmendorf confessed a judgment without action to the said Schoonmaker for $17,931, on which an execution was issued and delivered to the Sheriff of Hew York on the 12th April, 1855; the Sheriff declined to sell the Alida upon it, unless indemnified, and no indemnity was tendered. This judgment was held to have been entered without a compliance with the requirements of the Code in that behalf.

13. On the 15th of September, 1855, John Van Vechten mortgaged the Alida to James H. Elmore, to secure the payment of $1,000. The mortgage was filed the same day in the county where the mortgagor resided, and was also recorded in the Hew York Custom-House. Elmore had at the time actual notice of the plaintiff’s mortgage. The mortgage was executed to secure the payment of $1,000, which Elmore had loaned to John Van Vechten on the 19th July, 1855.

These are all the facts found which it is deemed necessary to state assuming the purchase by John Van Vechten to have been honest and valid. It may be mentioned in this connection, however, that such purchase is found to have been made for the use and benefit of H. Elmendorf, and that the money paid to Dunlop *393on the assignment of the Drew mortgage was- furnished by said Elmendorf, and that all the moneys paid to the Sheriff of Ulster on the note given for the amount of John Yan Yechten’s bid, except the $3,750 advanced by Abraham Yan Yechten on the 29th of July, 1854, were also furnished by N. Elmendorf, and that the use of John Yan Yechten’s name as purchaser of the boat and of the Drew mortgage, was a cover to protect the boat against the creditors of N. Elmendorf.

The rights of the parties will be considered, first, on the assumption that John Yan Yechten’s purchase was honest and valid, and is to be so treated, as to all persons who are Iona fide mortgagees of the boat under mortgages executed by him, while he was in actual possession and had the regular paper title.

In discussing the rights of the parties on this assumption, such other of the facts as affect these rights will be stated.

On this assumption and on the facts as found—

Abraham Van Vechten’s right is prior in date to that of either of the other claimants. At the time the Drew mortgage was assigned to him, (the 29th of July, 1854,) it was and had been duly filed, and a copy of it had been last filed on the 25th of October, 1853. Shaw, Elmore, and the plaintiff, at the time they severally took the mortgages under which they now claim, had notice of the mortgage which Abraham Yan Yechten now holds and which for brevity I call the Drew mortgage. It is clear, therefore, that their claims must be postponed to Abraham Yan Yechten’s, (Hill v. Beebe, 3 Kern., 556,) assuming the Drew mortgage to be a subsisting security. It follows that the only other claimants who can contest his priority of right are M. Schoonmaker, as assignee of the Westchester County Bank, and John Griffiths.

Griffiths’ claim is prior in date to that of M. Schoonmaker. Griffiths’ claim is based on a levy made November 16, 1854, of an execution against John Van Vechten and one DeMeyer; and M. Schoonmaker’s said claim is based on a levy made March 17, 1855, of two executions against John Van Vechten, DeMeyer and N. Elmendorf. It is found as a fact, that the Coroner of Ulster county had possession of the Alida under the levy of Griffiths’ execution from November 16 to December 7, 1854; that on the 7th of December, the boat was taken to and kept at the city of *394New York until the 5th of May, 1855, and. while there, and in March, 1855, was levied upon by the Sheriff of New York by executions on the judgments in favor of the Westchester County Bank, (which judgments are now owned by M. Schoonmaker as assignee,) and that John Van Vechten subsequently, by the allowance of the Sheriff of New York, took her back to Ulster county, and she made daily trips between Kingston Ulster county, and New York, from May, 1855, until September 15th, 1855, and that “the Coroner did not resume his levy upon the vessel after she returned to Ulster county, but by the directions and instructions of Griffiths, abandoned his levy and did not make any effort thereafter to interfere with the boat.”

On this state of facts, it is obvious that Griffiths lost all claim by virtue of the levy, not only as between himself and M. Schoonmaker, but as against Abraham Van Vechten. The levy having been in fact abandoned, it ceased to be a lien upon the Alida, or upon the proceeds of a sale made subsequently to such abandonment As between A. Van Vechten and Griffiths, it may also be observed that the note on which Griffiths’ judgment was recovered was taken by him for the amount of the purchaser’s bid at the sale of the Alida, made by him as such Sheriff, on the 17th day of July, 1854, and was a sale made in terms subject to the Drew mortgage. I do not think that a Sheriff, who becomes a creditor under such circumstances by taking a note of the purchaser instead of cash, as his duty required him to do, is entitled as between himself and a mortgagee, subject to whose mortgage such sale was made, to be considered a creditor who can question the validity of such mortgage on the mere ground that it was not refiled as required by law. But this point need not be determined, as Griffiths’ execution and the levy under it were abandoned by his directions; after such abandonment his lien was at an end.

The only claimant (if the views already stated be correct,) who can question Abraham Van Vechten’s right to priority is M. Schoonmaker.

In March, 1855, when the Sheriff of New York levied upon the Alida, she was in the possession of John Van Vechten, and from May 5th, to September 15th, 1855, she continued in his actual possession, and was run by him .daily between Kingston *395and Hew York, though she may have been in the constructive possession of the Sheriff of the county of Hew York, so that he could have stopped her at any time and sold her before she was seized by the United States Marshal.

If the mortgage under which A. Van Vechten claims had been made by John Van Vechten and a year had elapsed from the time of filing it, before the executions on the judgments in favor of the Westchester County Bank had been levied, or while the levy under them was in force, the mortgage would have become invalid as against such judgments. (Ely v. Carnley, 19 N. Y. R., 496.) To have avoided such a consequence, a copy of the mortgage must have been refiled within the time prescribed by law, or the holder of the mortgage must have taken possession of the vessel before he was in default by reason of not having refiled a copy of the mortgage with a statement of the amount due.

But the mortgagors in the Drew mortgage were William Masten, Hicholas Elmendorf and Marius Schoonmaker, and neither of them was in the actual possession of the Alida after the 17th July, 1854. Long before the Westchester County Bank recovered judgments against N. Elmendorf, DeMeyer and John Van Vechten, (which was on the 16th March, 1855,) the title of H. Elmendorf had been divested by the Sheriff’s sale made on the 17th July, 1854, to John Van Vechten, who, from the time of his purchase, was in actual possession of the Alida until she was seized by the United States Marshal, except the brief period during which his actual possession was interrupted by the Coroner of Ulster county, as already mentioned. When that sale was made to John Van Vechten, the time had not arrived when it was necessary to refile a copy of the Drew mortgage. It was in time to refile such copy and the prescribed statement as late as the 25th day of October, 1854.

On the 28th day of June, 1854, the then holder and owner of the Drew mortgage took all the possession of the Alida which could practically well be had, and advertised that she would be sold on the 17th July, 1854, that being the day she was advertised to be sold by the Sheriff. The Sheriff, who had actual possession, seems to have admitted the prior claim of the owner of the Drew mortgage and to have held the boat subordinate to his claim, and in that sense to have held possession for him *396as well as under his levies, for he announced when he exposed the boat to sale that the sale would be made subject to the Drew mortgage. The boat was then delivered to John Yan Yechten, as purchaser at the Sheriff’s sale and as assignee of the Drew mortgage. The title of Elmendorf was thereby divested as to all general or judgment and execution creditors, and the person who acquired it having taken possession as assignee of the Drew mortgage, long before it was necessary to refile a copy of the mortgage with the requisite statement, did by that act all that (Ely v. Carnley, 19 N. Y. R., 496,) intimates it was material for him to do, to save the Drew mortgage from forfeiture in consequence of not refiling it.

The assignment of the Drew mortgage to Abraham Yan Yechten, as an assignee in good faith and for value, should protect him against the claims of the Westchester County Bank as a creditor of N. Elmendorf by virtue of judgments recovered on the 16th of March, 1855, some eight months subsequent to the time when the title of N. Elmendorf as owner had been extinguished by the Sheriff’s sale on the 17th July, 1854, and a still longer period after his possession of the Alida had been terminated by her being taken by the Sheriff of Ulster on the 4th of May, 1854. The statement of the facts found by the Court does not disclose the nature of the liabilities on which the Westchester County Bank recovered its judgments, nor when they arose. There is, therefore, nothing in the facts found indicating that the Westchester County Bank was a creditor of N. Elmendorf while he had any interest in, or was in possession of, the Alida, assuming John Van Vechten’s purchase to be honest and valid.

The omission to file a copy of the Drew mortgage within thirty days next preceding the expiration of the year commencing October 25, 1853, only makes it invalid, after such omission has occurred, as against creditors of the mortgagors and subsequent purchasers and mortgagees in good faith. (3 R. S., 5th ed., p. 228, §11.) As a creditor of John Van Vechten, the Westchester County Bank cannot allege that the Drew mortgage has thus become invalid; for he is not a mortgagor named in it. Nor can a creditor of Nicholas Elmendorf claim it to be invalid, as the Bank is not found to have been a creditor until long after his possession of it and of his interest in it had been extinguished. I think, *397therefore, that the judgment declaring Abraham Van Vechten’s priority is correct upon the facts found, if it can be treated as a subsisting security. In coming to this conclusion, I assent to the view taken by my brother Hoffman, at Special Term, of the force and effect of the act of Congress, (U. S. Stat. at Large, vol. 9, p. 440,) and must assume that Abraham Van Vechten’s rights are the same as if it were conceded that John Van Vechten bought in good faith and solely on his account.

Assuming John Van Vechten’s purchase to have been honest and valid, it is difficult to comprehend on what principle Shaw could claim, under his mortgage against John Van Vechten. The executions on which the boat was sold were actually levied as early as the 4th of May, 1854. All of these executions were on judgments against N. Elmendorf. Shaw’s mortgage being made by N. Elmendorf, and not having been filed when the executions were levied, it was absolutely void as against the plaintiffs in such judgments. It must be true that any person purchasing at such sale Iona fide, (unless the bona fid.es of the purchase would be affected by notice of Shaw’s mortgage and of his claim under it,) would acquire a title unaffected by such mortgage.

But such a purchaser, buying expressly subject to the Drew mortgage, and having notice of Shaw’s claim, might properly, for greater security, take an assignment of the Drew mortgage, so as to protect himself against Shaw’s claim to the extent of the sum paid for the assignment of it, which is more than sufficient to cover Abraham Van Vechten’s claim.

John Van Vechten having taken such an assignment of it, his assignee of it, being an assignee in good faith and for value, should also be protected as against Schoonmaker, a subsequent creditor of U. Elmendorf, whose right to relief depends upon proof of the fact that John Van Vechten’s purchase was in fact made for the benefit of Elmendorf.

The position of such an assignee should be regarded as favorably as if John Van Vechten’s purchase had been, in fact and intent, what it was in form, and appeared and was believed to be, when his assignee of the Drew mortgage took it and advanced upon it, as against one not a creditor of N. Elmendorf until after such assignment was made.

*398But the further facts are found, that all the notes, (including notes made in renewal thereof,) which the Drew mortgage was executed to secure, had been paid prior to the 29th of October, 1853, except the note at eighteen months, and this fell due April 29, 1854, exclusive of the days of grace.

That, as part of the terms of the sale and transfer by Hasten & Schoonmaker of their interest in the Alida to N. Elmendorf, on the 9th of January, 1854, he agreed to pay all the debts of the firm of Masten & Company, (the eighteen months’ note above mentioned being one of such debts.)

That “ the purchase made by John Van Vechten at the Sheriff’s sale on the 17th of July was not a purchase in good faith on his own account, but was made for the usé and benefit of Nicholas Elmendorf, and was fraudulent and void as to the creditors of the latter.”

That the money which was paid to the said Dunlop and the Deputy, Stewart, was the money of the said Elmendorf.

That Abraham Van Vechten, in making the loans which it is found he did make to John Van Vechten, and in taking an assignment of the Drew mortgage, “ acted in good faith, and is not chargeable with notice of the arrangement (above) mentioned between Elmendorf and John Van Vechten under which the latter bought the Alida at the Sheriff’s sale.” In this connection it should be borne in mind that the only note remaining unpaid at the time óf the assignment of the Drew mortgage to A. Van Vechten, which that mortgage was made to secure, was then three months overdue, and it is not found as a fact that such note was assigned with the mortgage.

But assuming that it was, it had been in fact paid on the 17th July, 1854, by N. Elmendorf with his own money—as between him and his co-makers, Hasten & Schoonmaker, it was his duty to pay it — as to them it was actually extinguished, and was a nullity in the hands of John Van Vechten.

Abraham Van Vechten having taken an assignment of it after it was due and had been actually paid, could not recover upon it in an action against all the makers. Masten & M. Schoonmaker’s defense to such an action is perfect.

The debt being the principal, and the mortgage the incident, it is not true that the mortgage, when assigned to A. Van Vech*399ten, was for any purpose, either at law or in equity, a subsisting security for the payment of any such debt as is described in it. There was not then, in legal existence, an eighteen-month note made by Hasten & Company, or by the persons composing that firm. It was then not only dishonored by being past due, but had been extinguished by actual payment. John Van Vechten never had any claim upon it: it was paid when it came to his hands, and had been paid by the maker, whose duty it was to satisfy it.

At and after such actual payment, and thence up to the 27th July, 1855, a period of twelve days—the Drew mortgage had ceased to be a lien on the Alida—and Shaw’s mortgage, became and certainly during that period was, the first lien. (Otter v. Vaux, 39 Eng. Law & Eq. R., 611.)

If A. Van Vechten, by force of the assignment to him, has the better and a prior right, how has he acquired it?

It is by taking the assignment of a mortgage and of a note which it was made to secure some three months after such note had become due, and some twelve days after it had been actually paid, without addressing a single inquiry to either maker of the note or either mortgagor. He necessarily took it, as it seems to me, subject to the equities of all parties having a specific valid lien upon the Alida. He took only such rights as John Van Vechten then had; the note and mortgage in his hands being void, they having been actually paid, and having been transferred to him as a part of the means to be used in the attempt to defraud the creditors of Elmendorf, John Van Vechten, as such holder of the Drew mortgage, had no rights, (Ellis and Wife v. Messervie et al., 11 Paige, 467; S. C., 5 Denio, 640,) and having none, his assignment to A. Van Vechten transferred none.

Of the sum which A. Van Vechten loaned to John Van Vechten, $1,795, was loaned on the 18th of July, 1855; on the day the mortgage was assigned to him he loaned the further sum of $3,750. It is not found that any inquiries were made by Abraham as to the Drew mortgage, or that any representations were made concerning it, but it is simply found that to secure these two sums he took an assignment of the Drew mortgage and received a transfer of 156 shares of stock of Companies which are named.

*400On the facts found, therefore, A. Van Vechten acquired by the assignment of the Drew mortgage no lien upon the Alida; the mortgage was not a lien ; the lien once created by it had been extinguished, and could not be reinstated to the prejudice of creditors then having a valid specific lien as Shaw had by his mortgage which at that time had been duly filed.

If this view be correct, A. Van Vechten has no claim as against Shaw.

The next question is, has either of the other claimants a right superior to Shaw’s?

In discussing this question the facts as found will be assumed to be correctly found, for the reason that if the judgment appealed from cannot be sustained on those facts, a new trial is unavoidable. The Court at General Term has no power to determine the facts upon a review of the evidence, for the purpose of concluding or with such effect as to conclude the parties by such determination. If the judgment is erroneous the parties appealing are entitled to a new trial, and upon such evidence as they may give the facts must be decided at the Special Term.

Treating John Van Vechten’s purchase as having been made for N. Elmendorf, and as being a fraud upon and void as to the creditors of the latter, (and it is on this ground that Shaw’s mortgage is held to be a subsisting security and entitled to any part of the proceeds arising from the sale of the Alida,) other considerations arise. In that view the Alida was the property of N. Elmendorf, and she was in the possession of his agents— their possession as such agents was his possession. The Westchester County Bank recovered judgments against him in March, 1855, executions issued on those judgments were levied upon the Alida on the 17th of March, 1855, and an omission to refile a copy of Shaw’s mortgage before the expiration of a year from July 12, 1854, would render it invalid as against the Westchester County Bank as a creditor of N. Elmendorf. No copy was refiled within the year, and Shaw did not take possession of the Alida under his mortgage within the year. When the year expired these executions were in the Sheriff’s hands, and the boat was held by virtue of them.

On such a state of facts, Ely v. Carnley (19 N. Y. R., 496,) is an authority in point that Shaw’s mortgage became invalid as *401against the Westchester County Bank. It necessarily follows that the facts on which Shaw’s mortgage is held to be unaffected by John Van Vechten’s purchase, establish M. Schoonmaker’s title to priority over Shaw.

IH. As between Elmore and Schoonmaker as such assignee, the claim of the latter is prior in point of time. The executions in favor of the Westchester County Bank were levied on the Alida on the 17th of March, 1855, and at the time the mortgage to Elmore was executed, the boat was in the custody of the Sheriff by virtue of said levy, and was advertised to be sold. Elmore loaned to John Van Vechten $1,000 on the 19th July, 1855, upon a verbal understanding that he was to be paid out of the first earnings of the boat, and on the 15th September, 1855,- nearly two months subsequently, the mortgage in question was executed to him by John Van Vechten to secure this antecedent debt. Besides, the boat was at the time under an actual levy and advertised to be sold under such levy. A purchaser' to acquire a title as against an execution issued, must have been a purchaser in good faith before actual levy of the execution. (3 R. S., p. 645, 5th ed., § 17.) Elmore does not occupy the position of a bona fide purchaser and his mortgage was executed after an actual levy. M. Schoonmaker’s claim, as assignee of the Westchester County Bank, is prior to Elmore’s in point of time and in legal right. (Ray v. Birdseye, 5 Denio, 619.)

Besides this, it is found that he knew when he took his mortgage that the boat had been levied on and was advertised to be sold under the Westchester County Bank’s judgments.

And this also is their position as to each other, assuming John Van Vechten’s title under his purchase to be valid, as such executions were against John Van Vechten as well as Elmendorf.

Assuming it to be void and that the boat is in fact the property of Elmendorf, Elmore has no equity superior to Schoonmaker’s as he does not occupy the position of a mortgagee of John Van Vechten for value parted with on the faith of the mortgage and on the faith of John Van Vechten being the true owner. He has parted with nothing on the security of the mortgage. He acquired merely the rights of John Van Vechten, and he had none as against the creditors of Elmendorf, under execution actually levied, Elmendorf being the true owner.

*402IV. As between Shaw and Elmore, (leaving out of view, for the present, the existence of Schoonmaker’s claim as assignee of the Westchester County Bank,) it must be borne in mind that Shaw’s mortgage is first in point of time. It was recorded, on the day of its date, February 25th, 1854, in the Custom-House in New York, and a copy of it was filed in the town where Elmendorf, the mortgagor, resided, on the 12th of July, 1854. It is found as a fact “ that the said mortgage was made and received for value received and in good faith.”

The omission to refile a copy of it within the time prescribed by statute would render it invalid as against the creditors of Elmendorf, the mortgagor, and as “ against subsequent purchasers and mortgagees in good faith.” Elmore does not claim as a creditor of Elmendorf, nor as a purchaser from or mortgagee of Elmendorf.

The phrase “ purchaser in good faith,” as used in section 17 of 3 Revised Statutes, (p. 645, 5th ed.,) cannot be satisfied unless the person claiming to be such purchaser “shall have parted with something that is valuable upon the faith of his purchase, and before he had notice of such prior right or equity.” (Ray v. Birdseye, 5 Denio, 626.)

If this element be as essential to the character of a mortgagee in good faith “as to that of a purchaser in good faith,” (and I think it is,) then it is clear that Elmore is neither, as his mortgage was taken solely and purely to secure an antecedent debt, and he never parted with anything of value on the faith of his mortgage.

This is the view of their rights as between each other on the facts found, viz.: That the purchase made by John Van Vechten at the Sheriff’s sale on the 17th July was not a purchase in good faith on his own account, but was made for the use and benefit of Nicholas Elmendorf, and was fraudulent and void as to the credi: tors of the latter. Even if it be also true that it was effectual “ to change the title and possession, as between the said John and Nicholas, & as to Iona fide purchasers under John Van Vechten,” Elmore has succeeded merely to such rights as John Van Vechten had, and can assert none which did not exist in his favor as against the creditors of N. Elmendorf.

If these views be correct, it follows that Schoonmaker’s claim (as such assignee) stands first, Shaw’s second, and Elmore’s next, *403unless some one of them must yield priority to some of the claims yet to be considered.

V. The mortgage executed to the plaintiff on the 21st March, 1855, by John Van Vechten, is, of course, subordinate to Shaw’s, inasmuch as it was taken before it was necessary to refile a copy of the latter, (4 Kern., 71,) and to Schoonmaker’s said claim, because it was executed after an actual levy of the executions issued on the Westchester County Bank’s judgments, (those levies having been made on the 17th March, 1855,) and because it is usurious and void. It is subordinate to Elmore’s, because he is in a position to assail it on the ground that it is usurious and void, and that he has succeeded to all the rights of property of John Van Vechten in said boat.

The judgment confessed to M. Schoonmaker by Nicholas Elmendorf, on the 30th of March, 1855, entirely fails (as the Court at Special Term held,) to comply with the requirements of the Code, and is void as to the Iona fide creditors of Elmendorf, and as to Shaw as being a bona fide mortgagee of the boat. Whether Elmore, as not being a “ purchaser or mortgagee in good faith’’ from J. Van Vechten, and having no claim as a creditor of Elmendorf, or the plaintiff as not being a purchaser of that character by reason of his mortgage being usurious and as not being a creditor of Elmendorf, can question its validity, may not be entirely clear. (Kendall v. Hodgins, 1 Bosw., 659, and cases there cited.)

Whether the judgment may. be treated as utterly void, or whether it can only be set aside at the instance of a bona fide purchaser or mortgagee, may make a great difference in respect to the rights of the plaintiff and of M. Schoonmaker, (under such judgment,) as between themselves.

If the judgment cannot be treated as utterly void—but if, on the contrary, it is to be regarded as valid—as between the parties to it, then it will follow that Schoonmaker, by virtue of his judgment and execution, acquired a lien on the boat and on the surplus arising from the sale and remaining after satisfying the claims above declared to be the first two in point of priority. The only persons who can question Schoonmaker’s claim to that surplus are, first, the plaintiff, who is not a creditor of Elmendorf nor a bona fiide purchaser from John Van Vechten, and, *404second, Elmore, who is not a creditor of Elmendorf, and whose only claim is as mortgagee of John Yan Yechten. But John Yan Yechten, as it has been found, had no actual interest in the boat, although he held a regular paper title, and Elmore advanced nothing on the faith of his mortgage.

Assuming that neither the plaintiff nor Elmore is in a position to assail the judgment, and that it is valid as between Schoonmaker and Elmendorf, it would follow that Schoonmaker’s claim as the owner of such judgment is the third, Elmore’s the fourth, and the plaintiff’s the fifth, in point of priority.

As Griffiths’ levy was abandoned by his direction, I do not see that he has any lien on the boat; and if not, he has none on its proceeds.

If the judgment confessed by Elmendorf to Schoonmaker shall be held to satisfy the requirements of the Code, then Schoonmaker will be entitled (for the amount due upon it) to priority over Shaw for the same reason that he is entitled to priority over him for the amount due on the judgments recovered by the Westchester County Bank.

As the views expressed make a new trial necessary, even if such judgment does not conform to the provisions of the Code, I do not feel disposed to express any opinion upon the question of its regularity.

I think the judgment should be reversed and a new trial granted, with costs to abide the event.

Mongrief, J., concurred in this opinion.

I shall first examine the claim and position of Abraham Van Vechten.

1st. It must be admitted, that if the peculiar circumstances attending John Van Vechten’s purchase of the boat, and the position of Abraham Van Vechten as assignee of the Drew mortgage, do not make a difference, that mortgage must be treated as extinguished.

If a mortgagor simply pays off the first of two incumbrances, he has no right to claim that a transfer to himself, or a trustee for him, shall be available as against his own second incumbrancer. A mortgagor liable to pay a sum of money to his first *405incumbrancer, pays it, and gets a transfer; but that transfer is something which, on general principles, he cannot set up against those who claim as his creditors, by a title subsequent to that which he has so paid off.

It does not depend upon the technical doctrine of merger of the debt by the operation of payment; but if that debt could have been assigned over to a Trustee for the benefit of the mortgagor in effect, still the mortgagor would be altogether estopped from setting up the charge against the party in whose favor he created the other security. When a mortgagor takes an assignment to his own Trustee, he can never set up the mortgage debt, outstanding in the Trustee, against the second incumbrance.

I have stated these propositions in nearly the language of the Court in Otter v. Vaux. (39 Eng. Law & Eq. R., 611; in Chancery, 1856.) The case of Gardner v. Astor, (3 John. Ch. R., 53,) involves a similar principle.

But the question in the present case still is, does a payment by a mortgagor, with an assignment to another of the mortgage, absolutely, and for all purposes, produce an extinction of the mortgage ? I think not.

First. I apprehend that a mortgagor may, upon paying the amount, have an assignment of the mortgage made to a Trustee, and thus keep it alive, so that he could bequeath it as personal property, or transfer it so as to have effect against volunteers under him, and keep it as a charge on the estate against all with notice, at least. The power of one who holds property subject to a mortgage created by another, to do this, and to keep such mortgage in force for all purposes which it could subserve in other persons’ hands, is undoubted. (Millspaugh v. McBride, 7 Paige, 509, and cases; Bailey v. Willard, 8 N. H. R., 429.)

Next. It is apparent that a naked legal right to the mortgage passed to John Van Vechten by a sufficient assignment. A right to sue in his own name passed to him. A beneficial interest to some extent was vested in him. He had a right to hold the mortgage as security for his responsibility, and that of his indorser, upon the note given to the Sheriff, and on which he and such indorser were afterwards sued, and judgment recovered against them for a balance of over $4,000.

*406In this connection, it is to be observed that the Court below has not found that John Van Vechten, or his indorser, was insolvent. The evidence would not have warranted it.

The exact position of Nicholas Elmendorf and John Van Vechten then appears to be this: The former, the owner and mortgagor of the vessel, employed the latter as his agent or Trustee to purchase her at the Sheriff’s sale, engaging to pay the sum which he should become liable to pay. Van Vechten became responsible for the purchase-money on his own note with an indorser. He was justified in taking the title, and holding the possession until his own and his indorser’s liability for the purchase-money was removed, and his advances for liens repaid. He did take possession; he did exercise control. That possession and control was not interfered with after the sale, except by officers of the law. It was never .interfered with by Nicholas Elmendorf.

Again, John Van Vechten obtained of Abraham Van Vechten, on the 18th of July, 1854, the sum of $1,795, which was applied to liens upon the vessel. John Van Vechten was liable for this money. John Van Vechten must be treated as having Elmendorf’s authority to borrow it. As to Elmendorf, at least, he had a right to retain the assigned mortgage for his reimbursement.

The note remaining unpaid, which accompanied the. mortgage, went into John Van Vechten’s hands, and from him to Abraham Van Vechten. No doubt, if Hasten or Schoonmaker had been sued upon it, (being taken after maturity,) they could have set up Elmendorf’s engagement to pay it, and the actual payment of it out of his funds.

But as to Elmendorf, he can be considered as having given a full consent or ratification of John Van Vechten’s act, in taking and holding the note as well as the assignment, and of making use of both for the purpose of securing Abraham his advance, so that, if his continued liability on the note was. essential to preserve the mortgage in force against him, it is to be legally inferred even when in John Van Vechten’s hands, yet more strongly, when in the hands of Abraham.

The cases of Mead v. York, (2 Seld., 449,) and of Truscott v. King, (id., 147,) are I think clearly distinguishable from the present case In the former, when Smith paid his note indorsed by *407York, (the assignee of the mortgage,) he paid the mortgage debt, the sum received to pay the mortgagee. The only question then was, whether a parol agreement would avail, made between York and himself, that the assignment of the mortgage should stand as security for York’s future indorsements, and against a subsequent judgment creditor of the mortgagor. No attempt was made by assignment or other writing, to keep the mortgage alive for any purpose, either by the mortgagor or his agent. It was an attempt to revive a mortgage, before absolutely and unqualifiedly paid off. It was not a case of a mortgagor consenting or directing his agent or trustee, to take an assignment of the mortgage for his own protection against a liability, and ratifying its transfer to another upon money being advanced to pay executions against him.

Similar remarks are applicable to Truscott v. King.

I conclude that the mortgage was not extinguished when it was assigned, or by its assignment to John Van Vechten; that it retained a legal existence, to be controlled by what should appear to be the rights and equities between the parties interested to sustain or contest it. The third subdivision of the fourth point of the defendant, Schoonmaker, is pertinent to this subject. It was reasonable to keep the mortgage alive to protect against other liens, before the perfection of the title at the Sheriff’s sale.

If then the finding of the Judge imports that as between John Van Vechten and the creditors of Nicholas Elmendorf, the assignment to the former was void as fraudulent, it is not warranted by the case. The finding in this particular may possibly be construed so as to admit of the views I now take ;> but it is not a natural, nor a safe construction; and if the case turns upon, or is essentially effected by it, I shall conclude a new trial to be necessary.

The 19th article of the findings ought, I think, to be omitted. The facts which I have stated are the true results of the evidence, and will cover the whole case more justly.

John Van Vechten then became a purchaser at the Sheriff’s sale, under circumstances which entitled him to hold the vessel until his own and his indorser’s liability for the purchase note was discharged, and his advances for liens repaid; and was a purchaser for value in so far as such liability extended and operated. *408He may be treated as a surety or substantially as a mortgagee placed in possession; and in this view of his relation and legal position, the rights of existing creditors and mortgagees, as well as of subsequent claimants, are to be examined.

But next, could not Abraham Van Vechten avail himself of the mortgage as an innocent holder for value, assuming that John Van Vechten, his assignor, could not do so?

Elmendorf, treated as original owner, employs John Van Vechten as his agent in the intended purchase of the vessel, and to arrange as to the incumbrances. Elmendorf knew of the mode pursued by such agent as to the assignments, both the one to himself, and that to Abraham Van Vechten. Certainly, at least, there was an implied recognition of all, John Van Vechten did. The money obtained from Abraham on the assignment went in part to pay Elmendorf’s debts then in execution, and partly for expenses of the boat. Elmendorf does not call for the outstanding promissory note, but permits it to . go into Abraham Van Vechten’s hands.

The case of White v. Knapp, (8 Paige, 173,) is analogous tthe present. Knapp had given a mortgage to White in 1836. There was a previous mortgage on the premises for $1,400, given in 1834, by Hinkley, the then owner. In June, 1836, there remained due on this mortgage over $380, which balance the holder of the mortgage called for. Hinkley borrowed $380 of the defendant, Thomas, to pay with some of his own money, the mortgage debt, promising the security of the mortgage. He paid the sum due to the holder, and got an assignment from him to Thomas, and afterwards delivered him the bond and mortgage. The claim of Thomas to a lien was sustained against another mortgagee. The Chancellor said: “ There could be no doubt of the intention to preserve the existence of the security, from the fact that the mortgage was assigned to Thomas by the proper officer of the Bank at the time the money was paid.”

Had Elmendorf, with the concurrence of John Van Vechten, borrowed the money of A. Van Vechten, and got an assignment from Dunlop directly to him, the case would have been exactly in point. I no not see a substantial difference in principle.

Still the question, raised in many of the points of the parties, is not fully answered. Must not Abraham’s rights and claims be *409exactly the same as those of John Van Vechten; and in the present view on the theory that John Van Vechten had no right or just title at all? As assignee of a chose in action, must he not occupy precisely the position of John, as to every claimant existing or subsequent of the property, or of any interest in it?

The anomaly which exists in the rules of law relating to a transfer of real estate, and the assignment of a chose in action, is noticed by the Master of the Rolls in Cockell v. Taylor. (15 Eng. Law & Eq. R., 101.) “It cannot be doubted that the purchaser of a chose in action does not stand in the situation of a purchaser of real estate without notice, and for valuable consideration, but takes the thing bought subject to all prior claims upon it."

This anamoly also exists as to goods capable of material possession, which have come to an innocent holder from a fraudulent possessor. (Mowrey v. Walsh, 8 Cow., 238; Hoffman v. Noble, 6 Metcalf, 68; Caldwell v. Bartlett, 3 Duer, 341; Saltus v. Everett, 20 Wend., 268.)

In Mangles v. Dixon, in the House of Lords, (18 Eng. Law & Eq. R., 82; 3, House of Lords Cases, 702,) the Lord Chancellor said: “If there is one rule more perfectly established in a court of equity than another, it is, that whoever takes an assignment of a chose in action, (which this charter party was, for it is not assignable at law,) takes it subject to all the equities of the person who makes the assignment.” And in Brandon v. Brandon, (39 Eng. Law & Eq. R., 186,) Lord Chancellor Chancellor says: “ The purchaser, whether with or without notice, of a chose in action, cannot be in a better situation than the person from whom he purchased.”

In the cases referred to, indeed in the greater number of cases on the subject, the question arises between the assignee and the debtor. Whatever equity or right the latter possessed against the assignor, he may assert against the assignee. Of this character also are Hamil v. Stokes, (4 Price, 161,) Matthews v. Wallwyn, (4 Ves., 118,) Ellis v. Messervie, (11 Paige, 467,) Gay v. Gay. (10 id., 369.)

The question between such parties will be affected by various considerations. “ It is the duty of the assignee to make inquiry of the debtor; and if, upon such inquiry, he is informed that the *410security is valid and unpaid, or if by the acts or declarations of the debtor, or even by his standing by in silence, and seeing the assignment made without objection, the assignee is led to believe the instrument valid, the debtor cannot set up his equity as a defense.” (Kinky v. Hill, 4z Watts & Serg., 426; Lord St. Leonards in Mangles v. Dixon, ut supra.)

The case of Mickles v. Townsend, in the Court of Appeals, (18 N. Y. R., 575,) is a very striking example of this .rule. A person was seized of the equity of redemption in land, subject to a mortgage made by a former owner, and conveyed it with warranty to the plaintiff. He procured an assignment of the mortgage, and transferred it for value to Townsend. It was held, that the mortgage became extinguished in the vendor’s hands, as to his vendee, with warranty; and the bona fide assignee could take no better title. The purchase of the mortgage by the vendor inured to the benefit of his vendee.

But there is another class of cases in which the rule has been more rarely applied, and as to which its extent is not, as far as I have ascertained, satisfactorily determined. It may however, I think, be safely stated, that as between a bona fide assignee for value, and parties other than the debtor or creator of the obligation, the position of such parties has an influence upon the questions, and an influence giving advantages in legal claim and title to an assignee, not possessed by an assignor.

Thus, in the case of George v. Milbanke, (9 Ves., 196,) as stated by Sir William Grant in Daubeny v. Cockburn, (1 Mer., 639,) the claim of the assignee was allowed to prevail, not against persons who had antecedently any specific interest or estate in the subject of the appointment, but against creditors who had only a general equity to have what was appointed, considered as assets for the payment of debts. “The question-,” says Lord Eldon, “is whether being not a volunteer, but a purchaser, creditors having no specific charge on the property, have as good an equity. I think they have not.”

In Moore v. Holcombe, (3 Leigh’s R., 597,) the vendor of land, with the purchase-money unpaid, was considered to have an equity against his vendee for payment out of bonds given on the purchase from such vendee, by an innocent third party. But the first vendee having assigned the bonds, there was no such *411equity as against the assignee. It was the equity of a third person, not a party to the bond, and of which he had not notice.

Clearly also the rule is inapplicable in a number of cases in which there is a latent equity in a stranger which is not known to the assignee, yet which would defeat the assignor.

Redfearn v. Ferrier, (1 Dow’s P. R., 50,) Murray v. Lylburn, (2 John. Ch. R., 441); Livingston v. Dean, (id., 479); Mott v. Clark, (9 Barr’s R., 399,) are of this character. In the former it was held, that what in Scotland is called an intimated assignation, (an assignment of which due notice has been given,) would prevail against a latent equity unknown to the assignee. The distinction between equities existing in the debtor and in third persons, is dwelt upon.

The case of Hoyt v. Thompson in the Court of Appeals, (19 N. Y. R., 207,) appears to me important upon the present inquiry. Thompson derived title to a mortgage through the State of Michigan: Hoyt through a Receiver of the Morris Canal and Banking Company. The Court of Appeals decide: 1st. That as between the Company and the State, the title of the latter was valid. 2d. It is assumed, if not held, that the title of the State might have been defective as against creditors of the Company. 3d. On the concession that it might be defective as to them, it is decided, that Thompson was a purchaser in good faith and for value, and without notice, and could hold against the plaintiff.

I understand also the decision to concede, that Hoyt stood in the situation of the creditors upon the point considered. If Hoyt represented the Company simply, the discussion of the question would seem to have been useless, as the title of the State against the Company was held absolute.

The decision further assumes that the Judge, at Special Term, may have been right in concluding that the Company was insolvent, and that the State of Michigan had knowledge of such insolvency, as well as of the general statute avoiding transfers in contemplation of it. But it concurs with the General Term in holding that Thompson did not actually know either matter; and although he might be chargeable with notice of a charter provision, he was not with notice of a general foreign law, although the charter was subject to it.

*412Again, there is another point in the decision to be noticed. There was an infirmity in Hoyt’s title. It could not be traced to the voluntary act or conveyance of the Company, the owner. Hoyt claimed under the statute of another State, upon an assignment effected by that statute. Such an assignment was of no validity here; and the principles of inter-state comity did not call upon our Courts to recognize its operation, so as to divest the title of a citizen acquiring his rights from the Company under its jus disponendi.

In short, I regard the decision as entirely consistent with, although not in terms declaring, the proposition of Mr. Justice Seldeít in his dissenting opinion in December, that the claim of creditors of the Company, (and, as I deduce, of the plaintiff,) could have been sustained against the State of Michigan.

I think the proposition may be drawn from this case, that a bona fide assignee of a chose in action has a right to avail himself, of an infirmity, or imperfection in the title of the party who impeaches his claim, even when such infirmity would not have prevented that party’s success against the assignor.

Tested by the rules thus presented, I think the claims of all the contestants, hostile to Abraham Van Vechten may be disposed of in his favor.

The only one prior in point of time is that of Shaw.

Shaw knew of the existence of the mortgage; he knew that the vessel was to be sold subject to it; this mortgage was in full force, unaffected by any omission to take possession, or to file, when Shaw took his own on the 25th of February, 1854, or filed it on the 12th of July, of that year. In the fall of 1854, he recognizes the Drew mortgage as valid, and the right of Abraham Van Vechten as assignee to a priority under it.

The plaintiff cannot be permitted to.question it. He had actual notice of its existence; besides, he is not such a creditor or mortgagee as is entitled to question it.

Elmore also had actual notice of the mortgage before taking his own. (Hill v. Beebe, 3 Kern, 556.)

Griffiths abandoned his levy, and has not appealed.

Sehoonmaker in his own right cannot be entitled to question this prior mortgage. The confession to him was void; his demand was subsequent in origin; and I understand the rule to *413be, that a creditor cannot be in a position to impeach a prior mortgage until he has obtained judgment and execution. His judgment and execution were void as to bona fide purchasers and creditors, perhaps as to all except Elmendorf and volunteers under him.

Schoonmaker, as assignee of the Westchester County Bank, presents this case on the facts and present evidence. The Bank does not appear to have been a creditor until March 16, 1855. The boat was then out of the possession or control of the mortgagor, Elmendorf. The other debtor, John Yan Yechten, was not mortgagor. The Bank was not such a creditor in a position to question the mortgage for an omission to take possession or reñle after October, 1854. Abraham is within the principle by which John’s purchase may be regarded as bona fide and on his own account. If the date of the debt to the Bank should be in evidence, a question not free from doubt, may arise from the omission to refile this mortgage by October 25,1854. In the points and the opinion it is stated that in June, 1854, the Bark became creditors of Elmendorf; and at that time, the actual possession was in him, although subject to the levy of the Sheriff. But there is neither finding nor evidence of this fact.

It remains to be observed, that the omission to take possession before the 29th of April, 1854, when the last note fell due was justifiable; that the same omission from the 29th of April to the 28th of June is excusable, and does not invalidate the mortgage. That on the 28th of June, that was done which may be treated as equivalent to an assertion of possession; and that after the sale, the rights of the assignee of the mortgage, as between himself and the other contestants, is not prejudiced by such neglect.

As the case stands, I think Abraham Yan Yechten’s right is paramount.

2. The Shaw mortgage is next in priority in respect of time, and will next be considered.

It was not extinguished or superseded by the sale under the executions and the purchase by John Yan Yechten. The latter bought with full knowledge of the mortgage. His title, valid for his own protection, must yield to Shaw’s prior and known equity and lien, when the executions which alone could give *414John Van Vechten a preference were paid entirely out of El men - dorf’s money.

Again, three of the executions under which John purchased were lodged with the Sheriff in January, 1854, but the levy was not made until May, 1854, Shaw’s mortgage was in February, 1854. He was protected by the provision of the statute, (2 R. S., p. 366, § 17,) as to purchasers between the lodging and levy of an execution.

The plaintiff cannot question it. He took his mortgage with actual notice of this charge. (Hill v. Beebe, 3 Kern., 556.) His mortgage also was taken on the 21st of March, 1855, before it was necessary to refile the Shaw mortgage, and the term subsequent in the statute means subsequent to the period when the time for refiling expires. (Meech v. Patchin, 14 N. Y. R., 71.) That time ended on the 12th July, 1855. Besides, I do not believe that the holder of a usurious security can question a prior mortgage for statutory fraud.

As between Elmore and Shaw, the case is more difficult.

■Elmore’s mortgage dated 15th September, 1855, was duly recorded at the custom-house, and duly filed in the proper county. He immediately employed an officer to assert his claims under it, and take all the possession he could. He is the only one of the parties to whom some negligence is not attributable.

If Elmore is a purchaser or mortgagee in good faith, within the meaning of the statute, his priority over Shaw would seem clear. The rule in Meech v. Patchin, (ut supra,) would apply. Elmore became a mortgagee after the time for refiling the Shaw mortgage had expired, viz.: after the 12th of July, 1855.

The case of Manning v. Monaghan, (1 Bosw., 459,) holds, that although the mortgagor be out of possession, a mortgage must be refiled within the year to keep its priority against creditors. It is true that Gosling appears to have become a purchaser on the 21st of April, 1855.

The time of refiling the mortgage expired about the 11th of October, 1855, it having been filed in October, 1854, being dated the 5th of October, 1854. Hence, the case may perhaps be subject to the doubt arising under Meech v. Patchin, (ut supra,) unless there is any ground for holding, that Gosling got Monoghan’s *415title as execution creditor. The term subsequent in the statute applies only to purchasers and mortgagees.

In Ely v. Carnley, (3 E. D. Smith, 489; on appeal, 19 N. Y. R., 496,) it was held below, that the mortgagee was bound to refile even after forfeiture; and the reasoning of Mr. Justice Woodruff tends to prove the necessity of it in all cases, except where the mortgagee is in possession. The head-note of the case in the Court of Appeals states this explicitly; and the decision seems to lead to it, if not expressly to hold it.

I think the proposition of the Judge at Special Term is correct. “No language can be more peremptory or more explicit than that employed in the act of 1833. If there is not an immediate delivery (to the mortgagee,) and an actual and continued change of possession, the mortgage must be filed, and refiled. The act covers every case in which possession is not delivered to the mortgagee.”

Hence, Elmore, if a mortgagee in good faith, has a priority over Shaw.

It is said that he is not such purchaser within the statute, because he advanced the money before taking the mortgage, not upon the faith or security of it.

The case of Ray v. Birdseye, (5 Denio, 619,) is relied upon. It arose under the statute (2 R. S., p. 366, § 17,) providing that the title of any purchaser in good faith of any goods and chattels acquired prior to the actual levy of any execution, without notice of such execution being issued, shall not be divested by the fact that such execution had been delivered to an officer to be executed before the purchase was made. The arrangement was, that the party should have wheat as a security for a note then held by him. It was treated, in the Court of Errors, as a mortgage, and that the party was not a purchaser so as to hold the property against an execution.

We may observe, that the original rule of the common law created a lien on goods from the teste of the execution. The statute restricted this right to the time of delivery, but made it then effective, with one qualification, that of a purchaser in good faith between delivery and levy without notice of the execution.

When the case was before the Supreme Court at a prior stage, (4 Hill, 158,) that Court thought that a tona fide preexisting debt *416constituted a valuable consideration and purchase in good faith. There could be no doubt that Ray, though a mortgagee, was to be deemed a purchaser, pro tanto, within the statute.

The provision of the statute now considered is, that every mortgage filed in pursuance of this act shall cease to be valid as against the creditors of the mortgagor, and against subsequent purchasers or mortgagees in good faith, after the expiration of one year from the filing thereof, unless refiled in the manner prescribed.

There is, perhaps, a distinction between the two statutes which is of moment. The execution creditor acquires a lien by delivering the process which nothing of his own neglect affects, and which is only to be displaced by one who shall rigidly come within the statute. In the present case the mortgagee’s omission to file or refile his mortgage tends to deceive the subsequent purchaser, who, finding no legal record there, takes a' mortgage for prior demands, and omits to resort to other measures to secure them.

The case of Baskins v. Shannon, (3 Comst., 310,) is important upon this question. It arose between two mortgagees of a canal boat. Shannon’s was the first in point of time. Possession was not taken under it, nor was it filed in the proper office. There was also no evidence of a consideration. The Court held that, had Baskins been a mortgagee in good faith, his title would have been superior to Shannon’s. It is then said, “to prove such good faith, it is essential to show that the subsequent mortgage was made for a valuable consideration,.or to secure payment of an honest debt.” Baskins sought to connect a sale of wheat and two prior notes with the mortgage. The Court held that he had failed in this attempt, reversing the conclusion of the Court below. “ There is no evidence to authorize a jury to find that the mortgage to Baskins was made to secure the payment of the price of the wheat sold or any portion of it, or of the notes or either of them.”

The case of Hanford v. Artcher, (4 Hill, 271,) in the Court of Errors, is cited. It is there stated, by Senator Hopkins : “ Proof of a valuable consideration, or an honest debt, is essential to show good faith; and if there be no such uro of, the requirement of the statute is not complied with.”

*417This language is used in relation to the clause of the fifth section of the statute, enabling a mortgagee or vendee who has not taken possession to repel the presumption of fraud, by showing that the transfer was made in good faith. (2 R. S., 136.)

The case of Cole v. White, (26 Wend., 511,) appears to me nearly decisive as to the construction of the phrase as used in this fifth section. I understand, from the statements and opinions, that the mortgage was given for a debt due before its execution. The Chancellor, in Hanford v. Artcher, (4 Hill, 278,) says: “I placed my vote in that case also upon the ground, that the admission of the plaintiff’s counsel, that the debt for which the mortgage was given was actually due, and that the mortgage was given at the solicitation of the mortgagees, for the purpose of securing that debt, was equivalent to an admission, that the security of the debt was the sole object of the mortgage, and not the ostensible object merely.

In Allan v. Cowan, (28 Barb., 99,) although the facts are not distinctly set forth, yet by comparing the statements at pages 100, 105 and 107, there can be no doubt, I think, that the indebtedness on which the mortgage was sought to be supported was prior to it. The ease was decided upon the insufficiency of the testimony to prove any indebtedness; but no point of the nature now suggested was raised.

In Randall v. Parker, (3 Sand. S. C. R., 69,) a bill of sale was executed on the 12th of May, 1845. The consideration expressed was $1,100. It was not pretended that any cash was then paid, but the consideration was stated to have been $1,100, moneys borrowed in 1845 and 1846, for $700, of which promissory notes had been given. In commenting upon the clause that the sale must be made in good faith, the learned Judge says: “The good faith of the parties is evinced by showing that the sale was not colorable and fictitious, but was founded upon a valuable, and as the parties believed an adequate, consideration, and was intended to operate as a valid transfer of the ownership.”

In Gardner v. McEwen, (19 N. Y. R., 123,) “the plaintiff proved that the debt mentioned in the mortgage was Iona fide owing to him, and that the mortgage was given after his repeated endeavors to obtain payment of the debt.” The mortgagee here re*418covered against an execution creditor. The point was not taken, but the case is still very pertinent.

' It appears to me that all these provisions are part of one system ; and that the interpretation which is given to the phrase “ good faith,” as applicable to purchasers or mortgagees under one section, ought to be adopted as to all.

Ely v. Carnley, is reported in 3 E. D. Smith, 489, and 19 New York Reports, 496. It can scarcely be questioned that the mortgage was for a previous debt, arising from a sale of goods and discounting of notes. (E. D. Smith, 497, &c.) It was dated September 26, 1850, and filed on the day of its execution. It was refiled on the 20th of August, 1851, but with such an error as to the amount of principal, as in truth to make it the same thing as if not refiled at all. On the 5th of September, 1851, the execution was delivered to the Sheriff, under which the claim against the mortgage was made. The mortgage was found by a Referee to have been made for a valuable consideration and in good faith. Justice Woodruff concurs in this finding. (Page 506.) The case was decided on the assumption of its being in good faith, in the Court above. Still the point did not there arise.

And yet the case of Van Heusen v. Radcliff, (17 N. Y. R., 580,) expressly decides that a general assignee for the benefit of creditors is not such a purchaser in good faith, as would entitle him to set aside a mortgage for the omission to file it. Slade v. Van Vechten, (11 Paige, 21,) and Dickerson v. Tillinghast, (4 Paige, 215,) were cited and relied on. The language of Justice Denio, (p. 583,) is very strong. “ When the act respecting the filing of chattel mortgages was passed, the term bona fide purchaser had acquired a settled meaning, which did not include a person whose purchase was on account of an existing debt, and who parted with no property or right to obtain his conveyance.”

I cannot but think that the analogous rule under the fifth section would be the better rule, but yield to what seems the strength of authority. It follows that Shaw has a preference over Elmore.

3. As between Schbonmaker, as assignee of the Westchester County Bank, and Shaw, my view is this:

The material facts bearing upon these relations and rights, are as follows:

*419Three of the executions under which the Alida was sold on the 17th July, 1854, were lodged with the Sheriff in January,

1854, before the execution of Shaw’s mortgage, which was in February, 1854. The levy upon these and the other executions was in May, 1854.

The facts connected with John Yan Yechten’s purchase, on the 17th of July, 1854, need not be restated.

The Bank’s judgments were recovered, and the executions taken out on the 16th, and on the 17th of March, 1855, a levy was made under them. I think the conclusion that the levy was not dormant is correct.

Shaw was a bona fide mortgagee: his security was next in point of time to the Drew mortgage. Although three of the executions were lodged in January, and his mortgage was in February, 1854, yet he was protected as a purchaser intermediate the lodgment and levy. (2 R. S., p. 366, § 17.) Shaw was not chargeable with notice of the facts attending John Van Vechten’s purchase. Shaw is excused from taking possession. Hothing impairs his claim, or tends to let in Schoonmaker before him, except the omission to file his mortgage before July, 1854, or to refile it before July, 1855.

On the facts found, and the evidence in the case, the claim of the Bank must be treated as arising on the 16th or 17th of March, 1855.

I think the definition of the term “creditor ” in the 6th section of the statute (2 R. S., 136,) which is applied to the 5th section, is to be taken as a definition of the same term in the act of 1833, (ch. 279,) as to the filing and refiling of mortgages.

The creditors then who may take advantage of the omissions of the mortgagee, are creditors at the time of the mortgage, or who became such during the possession or control of the mortgagor.

Subsequent creditors are then let in, but obviously upon the ground that the ostensible possession induces credit. That is permitted by the mortgagee, and if he can be excused for this, it can only be when he keeps his mortgage duly filed. Creditors of this class must still place themselves by means of an execution in a legal position to question the mortgage.

*420Now on the facts as I have considered and stated them to be, John Van Vechten’s actual possession was a warranted possession, as a quasi mortgagee for his own protection, and as to innocent incumbrancers. The Bank then was not a creditor when Elmendorf had possession or control, and though John Van Vechten was a co-debtor he was not a mortgagor.

The case may be different if what was, as I believe, proven on the trial, but is not in the case, viz., that the debt arose in June, 1854, should be established.

Again, it is true that as the levy was made on the 4th of May, 1854, upon executions, the title of the creditors therein may be considered as passing to the purchaser; and if they could have superseded Shaw’s right by reason of his neglect to die his mortgage before July, the purchaser could do so.

I think the answer is found in the relation of John Yan Yechten. As these executions were paid off by Elmendorf, his right and title were affected, and ultimately got into Griffiths, the Sheriff, by force of the judgment on the note. John could not be allowed to question Shaw’s mortgage, especially as he had knowledge of it at the time of his purchase.

And as to the other claimants, I am clear that the plaintiff cannot do it, in which the other members of the Court concur. I am also clear that Schoonmaker, in his own right, cannot do it on the void confession of judgment to him. Griffiths has not appealed.

4. The next question is, as between Schoonmaker, as assignee of the Bank, and Elmore.

The judgments and executions were against Elmendorf, and also against John Yan Yechten, from whom Elmore took title. At the time of his mortgage, the boat had been levied upon, and was advertised for sale under the executions. Even if a purchaser in good faith under the 17th section, he took his incumbrance after an actual levy.

It seems to me quite clear that Schoonmaker’s claim, as assignee, is better than Elmore’s.

5. Elmore has a preference, I think, over all the other claimants.

6. The plaintiff, and Schoonmaker in his own right being subordinate to all the others, (Griffiths not appealing,) the remain*421ing question is between these two. I think that the plaintiff has a priority merely because of the previous date of his mortgage from John Van Vechten, over the execution against Elmendorf and subsequent levy.

This point is of no practical importance.

My conclusions are, that Abraham Van Yechten has the first claim upon the fund; Shaw, as mortgagee, the second; Schoonmaker, as assignee of the Westchester County Bank, the third, and Elmore, the fourth.

Judgment reversed, and new trial granted, with costs to abide the event.