Cullin v. Ryder

Cochrane, J. The bill of sale from Reynolds to Ryder having been given for the future support and maintenance of Reynolds was void as to his creditors. Pers. Prop. Law, § 23. Smith was a creditor of Reynolds and hence as to him the bill of sale is within the condemnation of the statute. TTis claim as such creditor was established by judgment-•before the commencement of this action and is not questioned herein. [487] The chattel mortgage from Reynolds to Ryder was expressly declared therein to be “ subject to the provisions of a previous chattel mortgage,” meaning the Smith mortgage, which was coneededly the only mortgage then on the property. The defendant Ryder consequently received no title to the property in question as against Smith. Her bill of sale was void as to him, and her chattel mortgage was expressly declared to be subject to his mortgage. "Whatever title she received to the property, either by virtue of the bill of sale or chattel mortgage, was subject to the interest of Smith therein. The plaintiff was fully aware of the origin and source of Mrs. Ryder’s title. According to his testimony, when he took his chattel mortgage from the defendant Ryder he was aware of the actual consideration of her bill of sale. He had full knowledge of the imperfections and defects which existed in her title by virtue of her bill of sale. The objectionable features were known to him because he says so. Mrs. Ryder could give to Guilin no better title than she had received from Reynolds, which title so received by her was expressly subject to the Smith mortgage; and Guilin could acquire from her no greater interest in the property than he might have acquired from Reynolds if the latter had not executed to Ryder any bill of sale or chattel mortgage. The plaintiff, therefore, is not entitled to any more favorable consideration than if his claim had been derived directly from Reynolds. But in the latter event, as the facts now appear, plaintiff could not avail himself of the failure of Smith to renew his chattel mortgage. Smith testified on the trial without contradiction that his mortgage was taken at the suggestion of the plaintiff and that, after the time when it was originally filed, he informed the plaintiff of its existence. Part of the consideration of the Smith mortgage was received by plaintiff, to apply on the real estate mortgage indebtedness against the Reynolds’ farm. . Plaintiff, therefore, had actual notice of Smith’s mortgage and cannot take advantage of the failure to properly renew the same. McCormack v. Venable, 34 N. Y. St. Repr. 717; affd., 133 [488] N. Y. 536; Zimmer v. Wheeler, 2 N. Y. St. Repr. 325; Gildersleeve v. Landon, 73 N. Y. 609; Mack v. Phelan, 92 id. 20, 25; Eastern Brewing Co. v. Feist, 21 Misc. Rep. 681. The plaintiff not having a judgment and execution is not a “ creditor ” within the meaning of sections 90 and 95 of the Lien Law. Jones v. Graham, 77 N. Y. 628. It follows that the mortgage of the. plaintiff is subsequent in lien to the mortgage of Smith and that the motion of the defendant Smith and Macdonald, as receiver, made on. the trial for a dismissal of the complaint must be granted. Complaint dismissed as to the defendant Smith and Macdonald, as receiver, etc., with costs not including an additional allowance. Ordered accordingly.