Ludwig v. Kipp

Headnote

Chattel mortgage on pi-operiy to be acquired In the future — ■ valid as between ' ' the parties thereto.

Appeal from a judgment of the County Court of Kings county in favor of the defendant, and from an order denying a motion for a new trial made upon the judge’s minutes.

The action was brought to recover certain articles of personal property, claimed by the plaintiff by virtue of a chattel mortgage given to him by the owner of the property.

One John Pruser executed a chattel mortgage to the plaintiff upon all the tools, fixtures and personal property in his store, including all the stock that might be put in thereafter. When the mortgage was signed there were no goods in the store and the plaintiff declined to take the mortgage, or advance the money which the mortgage was intended to secure. It was then agreed that the mortgage should remain with the attorney for plaintiff until the store was fitted up. After the goods were bought and placed in the store the money was paid and the mortgage delivered to plaintiff, and a copy duly filed. The plaintiff owned the real estate on which the store of Pruser was located. Some three months after the date of .the mortgage the goods were moved away in the night time by Pruser and defendant Kipp. Kipp knew of the existence of plaintiff’s mortgage, and had no connection with the title to the goods. The goods in question were found concealed on defendant’s premises. 'Upon this state of facts the court nonsuited the plaintiff.

The court, at General Term, said: “I think his ruling erroneous. Assinning that a mortgage on chattels is void as to after acquired property between the parties- and irrespective of the rights of creditors, there was evidence that the entire property in dispute was in the store at the delivery of the mortgage ; that the mortgage was left undelivered in order that the property might be in esse.

“ I do not, however, think that a mortgage (which is merely a •conditional bill of sale) of after acquired property is void as between the parties. The cases in which such a mortgage has been held void were cases where the question arose between the mortgagee and purchasers in good faith and judgment creditors. As has already been observed, as the case stands defendant is neither a purchaser or judgment creditor, but merely one who has concealed goods belonging to the plaintiff.”