Preston v. Southwick

LEARNED, P. J. : The bills of sale from McIntyre to Southwick and to Wells were executed and delivered December 29, 1883. They were filed December 31, 1883, in the proper office. The intervening day, December thirtieth, was Sunday. If there was an oral agreement that these bills of sale should be, in fact, mortgages, sueh oral agreement could not be filed. All that could be done under the statute (chapter 279, Laws of 1833, sec. 1) was to file the bills of sale. And that was done promptly. The statute speaks ’of a “ conveyance intended to operate as a mortgage” and requires its filing. And of course nothing more can be done, where the agreement rests in parol, by which a bill of sale, absolute on its face, is in fact a mortgage. The character of the bills of sale? tiiat is, whether they were absolute or intended as mortgages, must rest upon the agreement existing at the time when they were delivered. It was subsequent to such delivery and (according to the testimony of Southwick) subsequent to the filing of the bills of sale in the county clerk’s office that Southwick executed to McIntyre the authority to sell the goods. This was not signed by Wells. Now, if the oral agreement, on which the bills of sale were delivered, made them in fact mortgages, then this authority, signed by Southwick, was no part of the chattel mortgages, and it was not necessary to file it. If the bills of sale were chattel mortgages when they were executed, then they were properly filed, for the written authority signed by Southwick was not in existence when the bills of sale were delivered. But that written authority was not material to the contract between Southwick and Wells on the one side and McIntyre on the other, in respect to the transfer of his property to them. It might be useful as evidence tending to show what the actual oral contract was; but it was not a part of the contract. It was only an authority from one of the two separate mortgagees (perhaps acting for both) to McIntyre to dispose of their property, and to pay the avails to South-wick, the mortgagee; such avails to be applied to the debts for which the bills of sale had previously been given as security. It did not [295] make chattel mortgages out of the bills of sale; but it only acknowledged the duty of the mortgagees which already rested upon them by the oral agreement. It refers to the sums mentioned in the bills of sale due said Southwick and Wells. And the bills of sale had expressed these amounts as the consideration. Suppose this paper had been executed to some third party (as it might have been), who was to sell these goods for Southwick and Wells? Would there have been any necessity for filing it ? The case of Ely v. Carnley (19 N. Y., 496), holds only that, where a copy of a chattel mortgage is filed, after the lapse of the first year (under sec. 3 of the Act), and the statement of the amount claimed was too much by $100, such filing was not good. But that does not hold that where a bill of sale, absolute on its face, is, by oral agreement, a chattel mortgage; such bill of sale cannot be filed. Yet such bill of sale does not show the amount of the lien. I find no case which requires the filing of such an instrument as the power executed by Southwick to McIntyre; and I do not think that the bills of sale (assuming for the present that they were chattel mortgages) were void because this paper was not filed. That where a bill of sale is, by oral agreement, intended as a mortgage, it is a full compliance with the statute to file the bill of sale, seems to me evident. The statute says: “ A conveyance intended to operate as a mortgage.” Now, if the instrument is on its face a mortgage, then this language is inappropriate. The language must be intended for the case where the instrument is absolute on its face, but “intended to operate as a mortgage ” by oral agreement. It seems to me that the mortgages (assuming them to be such) were properly filed under the statute. I think the judgment should be affirmed, with costs. Bocees, J., concurred.