H. H. Camp v. G. S. Camp — 2 Hill & Den. 628

Majority

p. 628

H. H. Camp vs. G. S. Camp and others.

Headnote

Where a mortgage of personal property was not filed pursuant to 2 R. S. 71, § 9, 10,2d ed., and the mortgagor was suffered to remain in possession for the purpose of managing-theproperty as agent for the mortgagee: Held, not an actual change of possession within the meaning of the above statute, and that therefore the mortgage was absolutely void as against creditors.

Trespass for taking a wagon, tried at the Tioga circuit in January, 1841, before Monell, C. Judge. The defence was, that the wagon once belonged to Henry W. Camp, and was seized by direction of the defendants under an execution against the former issued on a judgment recovered in 1839. The plaintiff claimed title to the wagon under a mortgage covering a large amount of personal property, including the wagon in question, executed to him by H. W. Camp in 1837, for a valid consideration. The mortgage had not been filed pursuant to 2 H. iS. 71, § 9, 10, 2d ed.; and the mortgagor testified that, when it was executed, he “ made a formal delivery of the property to the plaintiff, going around with him and pointing out” the several articles—that the plaintiff then requested him (the mortgagor) to take charge of the property at a stipulated compensation, and manage it as agent—that witness immediately took charge of it accordingly, and had not possessed it since except as the plaintiff’s agent. It appeared that the property had not been removed from where it was when the mortgage was given, but had ever since remained in the mortgagor’s charge. One question at the trial was, whether these circumstances could be deemed to constitute “ an immediate delivery” and an “ actual and continued change of possession of the things mortgaged,” within the meaning of -the above statute. The circuit judge held they might; and the jury having found a verdict in favor of the plaintiff, the defendants now moved for a new trial upon a case.

p. 629

M. T. Reynolds, for the defendants,

8. Stevens, for the plaintiff.

By the Court,

The plaintiff's title to the one horse wagon depended on the question, whether the possession of the property, of which he took a mortgage from Henry W. Camp, was actually delivered, within the meaning of the statute for the protection of creditors against fraudulent transfers.

Henry W. Camp was left in possession as the plaintiff’s agent, to manage the property for him; and this the judge put to the ■jury as an actual change of possession from mortgagor to mortgagee. The mortgage was not filed, and the statute declares such a mortgage absolutely void as to creditors, if it be not accompanied by an actual and continued change of possession. We are of opinion the learned judge erred. Actual change of possession, imports at least something more than a mere legal or fictitious change, to be worked by the operation of the mortgage itself. Upon any other construction the statute means nothing. Nor can parties agree that the mortgagor shall continue in actual possession, and call this the possession of the mortgagor.

New trial granted.