Stockham v. Allard.

An extra allowance of $350, for costs, was made in this case in favor of the defendant; and from the order giving such additional sum an appeal has been taken. The case is, as it seems to me, a very proper one for an additional allowance; nor is the amount given by the order unreasonable. The case may well be considered both difficult and extraordinary within the provision of the section of the Code under which allowances are authorized to be made. The order appealed from should be affirmed, with $10 costs. Judgment and order affirmed.

STOCKHAM, appellant, v. ALLARD.

Chattel mortgage— refiling original mortgage.

The holder of a chattel mortgage to secure a continuance of its validity, after the expiration of a year, refiled the original with the statement required by statute indorsed thereon. Held, a compliance with the requirement of the statute (Laws of 1833, chap. 239, § 3) that "a true copy" be again filed.

APPEAL from a judgment in favor of defendants entered upon the report of a referee. The action was brought in Onondaga county by De Forest Stockham against Eriel D. Allard and Jarvis Burton to recover the possession of a mare which had been taken from the possession of plaintiff by defendant Allard, and by him sold to the defendant Burton. The mare was taken and sold by Allard under a chattel mortgage executed by a former owner of such mare to one Ellis, who, for value, assigned the same to Allard. The only question arising on the trial was as to whether this mortgage was properly kept renewed as against subsequent mortgagees and purchasers. The mortgage mentioned was executed September 12, 1868, and the original mortgage was filed in the proper town clerk's office September 29, 1868. On the 4th of September, 1869, Ellis indorsed upon such original mortgage a statement of the amount due thereon, and that that sum was the amount of his interest therein, and refiled such original. The town clerk then indorsed upon the mortgage a statement that it was filed September 6, 1869. In a similar manner an indorsement and refiling was made in 1870 and 1871, at the proper time. In 1872 the mare was taken and sold as above set

Stockham v. Allard.

forth. Plaintiff claims that this taking and sale was unauthorized, as the statute requires the filing of "a true copy" of a chattel mortgage to effect a renewal as against subsequent creditors and purchasers, and that the filing of the original is not a compliance with the statute.

Isaac D. Garfield, for appellant.

L. B. Kern, for respondents.

BOCKES, J. It is not claimed that the statements of the mortgagee indorsed on the mortgage, exhibiting his interest in the property, were insufficient, either in form or substance, to secure a continuance of its validity, after the expiration of the year, against the creditors of the mortgagee, subsequent purchasers and mortga gees in good faith; nor that the refiling was not in due time; but it is insisted that the refiling of the original, with such statement indorsed, was not a compliance with the law, which requires "a true copy" with such statement to be again filed. Laws 1833, chap. 279, § 3; 2 R. S. 136, § 11. The design of this law is plain and unmistakable. It had in view the protection of creditors, mortgagees and purchasers in good faith. Its object is well stated by Judge GROVER in Ely v. Carnley, 19 N. Y. 496, 498. He remarks as follows: "The object of the act was to enable creditors and others to ascertain whether personal property was owned by the possessor, and the extent of his interest in it. This was deemed necessary for the protection of creditors. It is important to creditors to know the amount of liens as well as their existence. Hence, the act requires the filing of the instrument or of a true copy. A compliance with the act will give the creditor full information as to the property mortgaged, the amount of the debt or condition of the mortgage, and to what extent the property can be made available for the payment of his debt. When the paper filed fails to accomplish these purposes, it falls short of the requirement of the statute." Now, may it not be added, that the requirements of the law are complied with when the paper filed does meet and answer all these purposes. The original mortgage, refiled in proper place and in due time, with a statement exhibiting the interest of the mortgagee in the property, good in form and in substance, would convey all the information possible to be desired from the

Stockham v. Allard.

refiling of a copy instead. With a view to notice and information of the contents, the original is equal to a copy. If, then, the performance of an act which fully answers all the purposes of a law, shall be deemed and held to be a compliance with its requirements, the validity of the mortgage in this case was continued by its refiling in due time with the proper statement of the interest of the mortgagee in the property. The rule above indicated was held to be a sound one in Patterson v. Gillies, 64 Barb. 563; also in Dillingham v. Bolt, 37 N. Y. 198; and it is supported by reason and justice. Perhaps a peculiarity in the language of the act should also be adverted to. It requires the paper to be "again filed." This seems to imply in literal significance, a refiling-a second filing of the same paper; that is, the filing again of the paper previously filed. It is supposed that if a copy be filed instead of the original in the first instance, as the law permits, then the refiling, or again filing of such copy with the necessary statement by the mortgagee, would answer the requirement of the law. Meech v. Patchin, 14 N. Y. 71. If a refiling of the copy would be good to continue the lien, there can be no reason why the refiling of the original should not secure the same result. In Fitch v. Humphrey, 1 Denio, 163, the original was filed in the clerk's office, and was "again filed" as in the case at bar; but the case turned on the insufficiency of the statement of the mortgagee's interest in the property. The point here under discussion was not raised, but if fatal to the validity of the mortgage as against creditors, mortgagees and purchasers in good faith as is now urged, it is not a little remarkable that it was not intimated or adverted to in that case, either by court or counsel.

On the whole, I am clearly of the opinion that the refiling of the original mortgage was equivalent to again filing a true copy, for every possible object of the law; and that such refiling with the necessary statement as to the mortgagee's interest in the property, in due time and in proper place, was a compliance with the requirement of the act, and continued the validity of the mortgage as against creditors of the mortgagor, and mortgagees and purchasers in good faith. The referee was, therefore, right in his decision, and the judgment should be affirmed, with costs.

VOL. IV, N. Y. REP.-36

Judgment affirmed.

Witbeck v. Van Rensselaer.

WITBECK, appellant, v. VAN RENSSELAER.

Ejectment-writ of possession in — Presumption as to levy — time of levy — Redemption after re-entry.

Upon a judgment for re-entry in an action of ejectment for the non-payment of rent, an execution directing the delivery of possession, was issued January 17, 1867, under which, on May 10, 1867, the sheriff entered upon the premises in controversy, which were yielded up by the occupant peaceably, and placed plaintiff in possession. After this defendant took forcible possession of the premises, and another execution was issued directing the sheriff to put plaintiff in possession, etc., under which the sheriff acted. Held, (1) that, in the absence of evidence, the presumption was that a levy under the first execution was made within sixty days from its issue; and, (2) that, as the judgment and not the execution constituted the lien on the property, the execution could be carried out after the sixty days. Held, also, that, as the judgment determined plaintiff's right to re-enter the premises, he might enter without a writ, and having taken peaceable possession on the 10th of May, the time within which defendant was entitled to redeem, under 2 R. S. 506, § 34, then commenced to run.

APPEAL from a judgment of the special term dismissing the complaint without costs to either party. The action, which was an equitable one, was brought in Rensselaer county, by William Witbeck against William P. Van Rensselaer and others, to redeem certain premises in the town of East Greenbush in said county, from the operation and effect of a judgment in ejectment obtained by said Van Rensselaer against plaintiff, in July, 1863, for the nonpayment of rent due under one of the covenants of what is known as a "manor lease," of which plaintiff was assignee. Such other facts as are material appear in the opinion.

R. A. Parmenter, for appellant. The execution could not be legally enforced on the 10th of May, more than sixty days after its receipt by the sheriff having elapsed. Code, §§ 285, 286, 289, 290 ; Crocker on Sheriffs, § 554; Kingston Bank v. Eltinge, 40 N. Y. 391-394; Adams on Eject. 346, note 1. The six months' statute of limitations, as to redemption, does not apply to an indenture made since 1787. Van Rensselaer v. Dennison, 35 N. Y. 393, 400; Van Rensselaer v. Chadwick, 24 Barb. 333; Lyon v. Chase, 51 id. 13.

Matthew Hale and Samuel Hand, for respondents.

Witbeck v. Van Rensselaer.

BOARDMAN, J. Plaintiff was the owner, subject to reserved rents, of certain premises in East Greenbush. By reason of the non-payment of the rent, the defendant Van Rensselaer, who was the owner of the rents reserved, brought ejectment and recovered judgment for re-entry. On the 10th of May, 1867, the defendants claim to have taken possession of the premises under a writ of possession executed by one Griggs, a deputy sheriff. Afterward the plaintiff resumed possession of the land and another writ was issued, and during the attempt to execute it, Griggs, the deputy, was killed. Soon after a further writ was applied for when the plaintiff made a tender of rents due, claiming that the judgment in ejectment had never been executed, and that his redemption was good and effectual as against the judgment for re-entry under 2 R. S. 506, §§ 33, 34.

The tender not having been accepted, the plaintiff brings this action in equity to redeem the farm from forfeiture under the right of re-entry. The judge at special term dismissed the complaint, holding that the tender was sufficient, but not in time, because more than six months had elapsed after said May 10, 1867, before such tender was made, and plaintiff's equity of redemption was thereby barred.

The plaintiff insists that the vitality of the writ of possession was spent prior to the 10th of May, 1867. It was issued to the sheriff on the 17th of January, 1867, and was returnable in sixty days thereafter. The writ was therefore executed (if at all) more than sixty days after it was issued.

In reply, it is suggested that it will be presumed, in the absence of evidence, the sheriff began the execution of the process within the sixty days. Such is the rule in regard to executions for the collection of money. A levy in time will be presumed where the sale takes place after the sixty days in the absence of any evidence. Hartwell v. Root, 19 Johns. 345; Jackson v. Shaffer, 11 id. 517. By analogy, the same presumption may and should exist in this

case.

But a further and stronger answer is made. In executions for the sale of real estate, no levy is made or required, for the reason that the judgment itself constitutes the lien. But the land may be sold on the execution after the return day is passed. So in this case, the judgment gives in terms the right of re-entry and possession. The only office of the execution or writ is to enforce such right. The lien is not created by a levy, the right to dispossess is