Nash v. Ely

By the Court, Nelson, Ch. J. As the property mortgaged was not left in the possession of the mortgagors, but remained with a third person to whom it had been previously delivered, until seized under the attachment, the case did not fall within the statute, 2 R. S. 136, § 5, and nothing short of actual fraud could invalidate it. Weeks in whose possession it was, claimed as purchaser from Grosvenor, and upon the proofs, he undoubtedly could have held it as respected him. Whether he could have done so, as respépted creditors, might be questionable. The property therefore was not only out of the possession, but beyond the control, of the mortgagor. The statute doesjnot require that the mortgagee shall take the actual .possession of the property at the time himself; it is enough if he removes it out of that of the mortgagor; and if he.finds it in the custody of a third person, when the sale or mortgage is made, we do not perceive any thing in the language, or, in the .object, or policy of the act, against permitting it to remain with him till such time as he may choose to take the personal charge of it. Leaving the property in this condition, [525] is certainly not within the mischief of leaving it in the possession of the vendor or mortgagor. There seems to be no foundation laid or attempted, upon which to infer actual fraud; nor can I find any thing in the case that would warrant the conclusion. The debt of Ely is not called in question ; for aught that appears, Chapman and Warner’s did not exist and the debt to Weeks, the only one known, is not specified, or even alluded to except incidentally. The rule of the statute then being out of the case, the only remaining ground upon which it is contended the justice could have placed his judgment, was fraud in fact. It may well be doubted, I think, upon. the facts in the case, if this question was litigated before him. For the only debt, as appears from the return, existing against Grosvenor, at the time of the mortgage, besides Ely's, was the claim, of Weeks, and even the amount of that is not shown. At most it was of small amount. When the demand of Chapman and Warner upon which the attachment issued accrued, does not appear. It is.difficult, therefore, to believe this question was made a point before the justice, in the absence of proof showing that there were creditors to be defrauded.~ Judgment affirmed.