Breeze v. . Bayne

Chase, J. The only question for our consideration is whether the findings of fact support the conclusions of law based thereon. It is provided by the Lien Law (Cons. Laws, ch. 33, § 235) as follows: “A chattel mortgage, .* * • * shall be invalid as against creditors of the mortgagor * * * after the expiration of the first or any succeeding term of one year, reckoning from the time of the first filing, unless, “ 1. Within thirty days next preceding the expiration of each such term, a statement containing a" description of such mortgage, the names of the parties, the time *210 when and place where filed, the interest of the mortgagee or any person who has succeeded to his interest in the property claimed by virtue thereof, * * *' “2. A copy of such mortgage and its indorsements, together with a statement attached thereto or indorsed thereon, showing the interest of the mortgagee or of any person who has succeeded to his interest in the mortgage, is filed in the proper office. * * * ” No statement was filed as required by said statute at the expiration of the first term of one year from the first filing of said chattel mortgages, or either of them, or at any time. It is, however, found by the court as follows: “Nineteenth. That heretofore and on the 9th day of March, 1908, the said Trivot Bayne was in the apparent possession of the stock and chattels described in the complaint, when the said Parker, as agent as aforesaid, entered upon the premises occupied by the said Bayne for the purpose of taking possession of said property in the course of the foreclosure of said chattel mortgage, and that it was then mutually agreed between the said Parker and the said Trivot Bayne, that the said Bayne, in consideration that the said Parker would not remove the chattel mortgaged property and effects from the said premises, that he, the said Trivot Bayne, would keep, care for, and turn over the same to the said Parker, as agent of the Fishers, on demand.” Except for the facts stated in the finding quoted it is undisputed that by the express terms of said statute said chattel mortgages were on March 28, 1908, invalid as against said defendant Bayne, a judgment creditor. (Stephens v. Perrine, 143 N. Y. 416; Russell v. St. Mart, 180 N. Y. 355; Porter v. Parmley, 52 N. Y. 185.) On March 9, 1908, the first two chattel mortgages had become invalid as against creditors, but the third chattel mortgage had at that time been duly filed and one year had not expired since it was so duly filed. It is found as *211 stated that Parker on that day, as agent of the mortgagee, entered into a mutual agreement with the defendant Trivot Bayne, that he, the said Bayne, would keep, care for and turn over the said goods and chattels to said Parker as such agent on demand. The possession of the defendant Trivot Bayne became the possession of the mortgagee, and-it does not appear in any way that he returned the property to the mortgagee. He apparently delivered the same to the constable holding an execution issued in his (Bayne’s) behalf upon the judgment confessed by the mortgagor to him. A mortgagee, who prior to the expiration of the year from the time when a chattel mortgage is first filed and ■ after default by the. mortgagor takes the property into his actual possession, holds the title to said property as such mortgagee under a mortgage then valid, subject only to an accounting and his failure to subsequently refile the mortgage pursuant to said statute, does not make his title as such mortgagee in possession invalid as against the creditors of the mortgagor. (Jones on Chattel Mortgages [5th ed.], §§ 294, 699; Porter v. Parmley, supra; Steele v. Benham, 84 N. Y. 634; Tremaine v. Mortimer, 128 N. Y. 1.) The purchaser of the brown horse at the chattel mortgage sale, therefore, as against Trivot Bayne, the defendant beneficially interested in this action and the person who contracted to keep and care for the same • as the agent of the mortgagee, obtained good title to it and was0 entitled to the possession of said horse when the demand was made therefor upon the defendants. (Dezell v. Odell, 3 Hill, 215; Cornell v. Dakin, 38 N. Y. 253; Western Transportation Co. v. Barber, 56 N. Y. 544, 552; Ouderkirk v. Central Nat Bank, 119 N. Y. 263.) It is difficult for us upon the record to determine the ultimate effect of holding that the brown horse was improperly withheld from the possession of the plaintiff, even if as suggested by the respondent such horse died *212 subsequent to the same being taken pursuant to the order in this action. The conclusion of law that the third chattel mortgage was invalid as against the defendants is not sustained by the findings, and the judgment is wrong so far as it is based upon such erroneous conclusion. The judgment should be reversed and a new trial granted, with costs to abide the event. Cullen, Ch. J., Gray, Haight, Vann and Werner, JJ., concur; Willard Bartlett, J., absent. Judgment reversed, etc.