Ceas v. Bramley

Boardman, J. : This was not a pledge because there was no delivery of the property to the defendant. (Edws. on Bail., §§ 176, 209.) Neither was it a chattel mortgage, because there was no absolute sale defeasible on condition, nor was there any delivery of the property by way of transfer of title as a security for a debt to be paid. (2 Wait, Act. & Dif., 165, etc.) A chattel mortgage may, doubtless, be made by parol, but in such case something more is necessary than mere words. In all the cases cited delivery of the mortgaged property accompanied the parol contract held to be a chattel mortgage. (Ackley v. Finch, 7 Cow., 290; Ferguson v. Union Furnace Co., 9 Wend., 345; Bank of Bochester v. Jones, [189] 4 N. Y., 506; Bardwell v. Roberts, 66 Barb., 433.) In the last case delivery is held to be essential to the validity of a parol chattel mortgage. If the transaction be treated as a sale of the horse, then such sale was void by the statute of frauds, and was without consideration. The contract was not reduced to writing and signed by the parties; there was no delivery and no money paid. The payment made bjr defendant to McIntosh, about the 1st of January, 1877, was ineffectual to validate a void contract, for two reasons: (1.) That at the time of such payment, Jeremiah Ceas, the other party to the contract, was dead; and, (2.) That such payment was not made with the purpose of complying with the statute, nor could the contract then have been reaffirmed or restated so as in effect to constitue a new contract as of the time when the payment was made. (Hunter v. Wetsell, 57 N. Y., 375.) There was an absence of consideration since the defendant's position as surety for Ceas remained the same after as before the alleged contract. • If the transaction can, by possibility, be considered a parol chattel mortgage, it ivas void as to the creditors of Ceas, and, on the evidence in this case, the plaintiff represents the creditors and can attack the defendant for taking this property after the death of Ceas. (Babcock v. Booth, 2 Hill, 181.) If the right of the plaintiff, as the representative of the creditors of the intestate, was doubtful in 1841, when Babcock v. Booth was decided, chapter 314 of Laws of 1858,’removes that doubt and extends the remedy of the administrator of a deceased person so as to include this case. (Levin v. Russell, 42 N. Y., 251.) As a chattel mortgage it was fraudulent in law as against the creditors of the intestate, and hence the property was assets in the hands of the intestate’s administrator for the payment of debts. The defendant, by taking such property after the intestate’s death and converting it to his own use, became liable to this action. (Husted v. Ingraham, 8 Week. Dig., 33.) We think the judgment is correct and that the motion for a new trial was properly denied. LeauNed, P. J., and Bocees, J., concurred. Judgment and order affirmed, with costs.