Hyperlawhypertext legal database Carpenter v. Simmons 24 N.Y. Super. Ct. 360

← Cases

Carpenter v. Simmons

24 N.Y. Super. Ct. 360 1 Rob. 360 Court N.Y. Super. Ct. Decision date 1863-11-28 English

Contents

Majority

p. 360
Jacob Carpenter, plaintiff and respondent, vs. William Simmons, defendant and appellant.

Headnote

1. In order to render the transcript of a docket of a judgment recovered in one of the district courts of the city of New York, admissible in evidence to prove the judgment in support of an execution thereon, it need not state that a transcript of such judgment had been given. The actual filing of a transcript prior to issuing 'execution may be established by other testimony.
2. The provision of the statute, (laws of 1857, ml. 1, p. 707, § 59,) which directs that the clerk of each of these courts shall keep “ a docket book,” in which he shall enter the particulars prescribed in various subdivisions of the section, and intended to contain a history of the proceedings in the action to and beyond judgment, are merely directory. They impose only a ministerial duty upon such clerks, the omission to perform which will not invalidate a judgment regularly recovered.
3. Although the docket and a transcript are made evidence, there is nothing in the act making them the only evidence, and the party may still resort to other competent evidence to prove his judgment.
4. The transcript produced in this case held to contain every requisite to show a regular judgment.
5. Under section 289 of the Code of Procedure, which presents the requisites of an execution, neither the teste nor the direction to return, is a necessary part of it. Therefore any errors in them are immaterial.
6. Where the sheriff, under an execution which he has levied on chattels subject to a prior mortgage, sells merely “ the right, title and interest of the mortgagors,” the purchaser is not estopped from questioning the validity of the mortgage.
7. It seems that no one can object that the property of the debtor in the execution was not sold in the mode prescribed by the statute, except the debtor himself.
8. It seems that a mortgage of a stock of goods an'd tools, purporting to embrace all other such property which may afterwards be substituted therefor or added to the stock, is void as against creditors, as matter of law.
9. In an action in which a judgment creditor impeaches a chattel mortgage as fraudulent as against him, -evidence of the contract on which the judgment was recovered is competent, for it tends to prove him to be a creditor, apart from the judgment and at an earlier date.
10. A judgment being in proper form against joint contractors, upon service of process upon one of them only, evidence that the other did not appear in person or by attorney is not material, in his behalf.
(Before Bosworth, Ch. J. and White and Monell, JJ.)
Heard November 11, 1863;
decided November 28, 1863.
p. 361
This was an appeal from a judgment entered on the verdict, as well as from an order before judgment, denying a motion for a new trial.
The action was brought to recover damages for the conversion of personal property. The plaintiff recovered judgment in the sixth district court, in the city of New York, against one Tibbetts and John Simmons, who were partners in business, under the name of Tibbetts & Oo. ; and upon this judgment an execution was issued, under which the sheriff levied upon the goods of Tibbetts & Co., and sold1 their right, title and interest. The plaintiff púrchased at the sale and took possession.
The cause was tried on the second day of December, 1861, berore Mr. Justice Woobrubs' and a jury.
The plaintiff’s counsel offered in evidence a transcript of the ■docket or record of the judgment in favor of the plaintiff against Tibbetts & Co., certified under the seal of the sixth district court. The transcript was as follows:
“I, John Waite, clerk of the district court in the city of New York, for the sixth judicial district, do hereby certify that on the 14th day of November, 1860, I, as such clerk, issued a summons, subscribed by me, requiring —=— Tibbetts and John Simmons to appear before Theodore J. Fonda, Esq. the justice of said court, on the 23d day of November, 1860, to answer the complaint of Jacob Carpenter.
That on the 14th day of November, 1860, Matthew Nugent duly returned on such summons that he personally served the » same on Tibbetts, one of the defendants therein named, on the 14th day of November, 1860.
That on the 23d day of November, 1860, at 9 o’clock a. m. the said plaintiff appeared before Theodore J. Fonda, Esq. the said justice of the said court, whereupon the said Jacob Carpenter did enter his complaint against the said Tibbetts and John Simmons, defendants, to wit, on check $200. The defendant did thereupon appear and make answer, to wit, general denial.
That on the said 23d day of November, 1860, trial was
p. 362
had; that witnesses were sworn and testified on the part of the plaintiff, and witnesses were sworn and testified on the part of the defendant; that judgment was thereupon rendered on the 23d day of Uovember,. 1860, in favor of the plaintiff for $200 damages, besides $4.50. Total damages and' costs $204,50.
I hereby certify, that the foregoing is a true copy of the docket or register, and the entries and proceedings before the said Theodore J. Eonda, Esq. justice of the district court of the sixth judicial district, in which Jacob Carpenter is plaintiff, and ■——• Tibbetts and ¡John Simmons defendants, and of the whole of such docket, entries and proceedings, as the same are kept by me.” [Signature and seal.] ■
The defendants’ counsel objected to the reading of the evidence, because,
1st. It did not appear therefrom whether each or both, or which, of the defendants appeared, the language being, defendants appeared ; that the manner of appearance was not stated, whether in person, by agent, or attorney; that this being a matter of jurisdiction, no presumption or intendment could supply the omission.
2d. That it appeared therefrom' that the summons was served upon one of the defendants only. •
3d. That said transcript did not state the names of the witnesses sworn, nor at whose request they were sworn.
4th. That it did not appear from such transcript that subdivision 1 of section 46 of the said act in respect to the district courts was complied with.
5th. That it did not appear therefrom whether the pleadings were oral or written. If in writing, it contained no minute of them referring to them ; and if not in writing, it contained no concise statement of a material part of the pleadings.
6th. That such transcript did not state against whom judgment was rendered, and that there was nothing therein to show whether the defendants were sued jointly or severally, or whether their liability was joint or several.
p. 363
7th. That such transcript did not show whether a transcript of the judgment had been given, nor when given.
8th. That it should appear therefrom, hut did not, that either the plaintiff or defendant, or one of the defendants, resided in the district where the court was held, or that the plaintiff or both defendants resided out of the city of New York, or the inability or disqualification of the justice, pursuant to subdivision 1, of section 4, of said act.
9 th. That it should show, but did not, that the district court was held at the place required, pursuant to section 7 of said act.
The court overruled these objections, to which decision the defendants’ counsel excepted.
The plaintiff’s counsel offered to read in evidence an execution issued on the judgment, which was as follows :
“ The people of the state of New York to the sheriff of the city and county "of New York, greeting: Whereas judgment was rendered, on the 23d day of November, one thousand eight hundred and sixty, in an action in the sixth district court for the city of New York, between Jacob- Carpenter, plaintiff, and -- Tibbetts and John Simmons, defendants, in favor of the said Jacob Carpenter, against the said Tibbetts and John Simmons, for the sum of $204.50, as appears.to us by the transcript filed with the clerk of the county of New York. And whereas the said judgment was docketed in your county on the 26th day of November, in the year one thousand eight hundred and sixty, and the sum of $204.50 cents is now actually due thereon. Therefore, we command you that you satisfy the said judgment out of the personal property of the said judgment debtors within your county, or, if sufficient personal property can not he found, then out of the real property in your county belonging to such judgment debtors on the day when the said judgment was so docketed in your county, or at any time thereafter, in whose hands soever the same may be, and return this execution within sixty days after its receipt by you to the clerk of the city and county of New York.
p. 364
Witness, Chables B. Halt, Esquire, one of the justices of the said court, at the City Hall, the 26th day of November, one thousand eight hundred and sixty.” [Signature.]
The defendants' counsel objected to the admission of such execution in evidence, upon the following grounds :
1st. That it did not intelligibly refer to any judgment, in • that it did not state in what court such judgment was rendered. That there -was no such court as sixth district court for the city of New York.
2d. It did not state the name of the justice by or before whom the judgment was rendered.
3d. It did not state the district in which judgment was rendered.
4th. It did not refer to the docket of the district court, nor the pleadings or process there.
5th. It is made returnable to the clerk of the city and county of New York.
6th. It is not properly tested, because—
(1.) There is no such person as “ Charles B. Daly, one of the justices,” &c.
(2.) “ Of the said court ” is of the 6th district court, that being the only court mentioned.
7th. There is nothing to show that it issued out of or is the process of the Court of Common Pleas for the city and county of New York.
8th. It did not issue out of, and it is not returnable to, the said Court of Common Pleas.
9th. It is not the process of the said Court of Common Pleas.
10th. It is not founded on the judgment mentioned in the transcript of docket read in evidence. It recites a judgment against Tibbetts and John Simmons. The transcript of docket does not show such a judgment.
11th. It is made returnable in sixty days, while it should be returnable in twenty days from the time of its receipt by the officer to whom it was delivered.
12th. It does not contain a direction to the officer to make
p. 365
return of the execution, and a certificate thereon, showing the manner in which he has executed the same.
13th. It does not hear date oh the -day of its delivery to the officer to he executed.
14th. It was not issued by the clerk of the city and county of New York, as required by subdivision 13 of section 64, of the Code of Procedure ; nor by the clerk of the district court, pursuant to section 51 of the act of 1857, in respect to district courts.
15th. If the judgment on which it was founded is to be presumed or considered, or was in point of fact a judgment against joint debtors, then it does not comply with section 53 of the act of 1857, nor. with section 3, article 1, title 1, chapter 6, part 3d, of the Revised Statutes, entitled “ Of proceedings against joint debtors.”
16th. It bears indorsed upon it the return of the sheriff, “No personal or real property.” This returm is conclusive on the sheriff and on the plaintiff. Neither can contradict it.
The plaintiff also proved by testimony, that a transcript of the judgment was filed in the county clerk’s office, before the issue of the execution.
The sale by the sheriff was of the right and title of Tibbetts & Oo. It was in bulk, and not by parcels, and the plaintiff purchased for $5.
William Simmons, the defendant in this action, was the father of John Simmons, one of the judgment debtors, and he claimed- the property under a chattel mortgage from Tibbetts & Co., given to him prior to the plaintiff’s judgment.
The schedule annexed to the mortgage, after enumerating the goods mortgaged, contained the following clause:
“And also all other goods, chattels, tools, fixtures, patterns, and other property which may be substituted for any similar property now appertaining to the business of said firm, or belonging to said firm, at said store and shop, or which may be added by way of purchase or exchange thereto. It being intended and declared that all the property, stock, tools and fixtures which may at any time form part of and belong to
p. 366
the said business of said firm of Tibbetts & Co. at the premises aforesaid, whether the same be now in. existence, or hereafter created or acquired, shall be and is included in, covered, and conveyed by the foregoing mortgage.”
The only other material facts established by the evidence are stated in the opinion of-the court.
There were two motions made to dismiss the complaint, which were refused.
The judgment debtor, John Simmons, examined'as a witness on the trial, was asked the following questions:
Q. Between November 27, 1860, (which was the day of the plaintiff’s levy,) and the day of the sheriff’s sale, did you at any time see or hear or know of any person put in charge of the goods or premises by the deputy sheriff ?
A. No, sir. I was at the store when Mr. Dunlap (the deputy) came. He said he had an execution against the firm for $204. I told him that we had no property; that the property did not belong to us ; it belonged to Wm. Simmons, my father. He went away after that, and did not do any ■ thing. He did not make a1 list, or inventory, that I saw. I was in the store until he went away.
Q. Was there any interference after that with the property there, that you know of, by Mr. Dunlap or any other person, up to the day of the sheriff’s sale ?
This question was objected to by the plaintiff’s counsel, on the ground that there was no proof or claim of any interference with the property after that, until the day ‘of sale. The question was excluded, .and an exception taken by the defendants’ counsel.
He was also asked: Was any thing said at the time the mortgage was made, by Mr. Tibbetts, or yourself, or your father, in respect to the purpose for which the mortgage was given, and, if so, what ?
This question was objected to by the plaintiff’s counsel, on the ground that their declarations were not evidence, and was excluded and exception taken by the defendants’ counsel.
Upon his cross-examination the plaintiff was allowed to
p. 367
prove that John Simmons was present at the trial in the district court, when Carpenter recovered his judgment, and that the cause of action was' a check given hy John Simmons.
The witness was then asked by the defendant:
“Was the debt or obligation for which the check was given the debt or obligation of Tibbetts & Co., or an individual debt of yours ?”
This was objected to by the plaintiff’s counsel, and was excluded unless the check should be put in evidence, the plaintiff offering the check to the defendants for that purpose. To this an exception was taken by the defendants’ counsel.
The judgment debtor, Tibbetts, being examined as a witness, was asked:
Were you present at any trial in the district court in any suit brought by Carpenter against John Simmons and you on the 23d day of November. I860 ?
A. I could not tell you. I don’t recollect that there ever was such a day, but I presume there was. I was not at the trial.
Q. You were not present in any district court on any return day in any suit in which Mr. Carpenter was plaintiff and you and John Simmons were defendants ?
This was objected to by the plaintiff’s counsel as immaterial.
This question was waived, and no ruling was made.
Q. You did say positively you were not at the trial. Did you employ any agent or attorney to go there ?
This was objected to by the plaintiff’s counsel on the ground that it was not necessary for the validity of the judgment that he should.
The objection was sustained, and an exception taken by the defendants’ counsel.
L. A. Lockwood, for the defendant, appellant.
I. The objections to the judgment, to the jurisdiction of the court, and to the execution were well taken.
(1.) The proof in respect to jurisdiction of the justice to render any judgment was defective, for the 8th and 9th reasons
p. 368
stated. (Benn v. Borst, 5 Wend. 292 . Hard v. Shipman, 6 Barb. 621 .)
The summons was not produced. A proper summons was necessary to show jurisdiction. Its production could not be dispensed with. Want of jurisdiction may always be set up when any benefit is claimed under any judgment, sentence or decree of any court, and the principle which ordinarily forbids the impeachment of a record is inapplicable. (Cowen & Hill’s Notes to Phil. on Ev. part 2, p. 274, note 112, and numerous cases cited, 3d ed.)
The summons was issued against-Tibbetts and John Simmons. It was served on Tibbetts only. One of the defendants appeared and answered, but which one does not appear. There is no presumption that the justice had such jurisdiction. (Snyder v. Goodrich, 2 E. D. Smith, 84. Robinson v. West, 11 Barb. 309 .)
The respondent was bound to show not only a'purchase, but authority in the sheriff to sell. (Carter v. Simpson, 7 John. 535 . Delaplaine v. Hitchcock, 6 Hill, 14 ; and see cases cited under 5th point, sub. 4.)
II. The sale made by the sheriff to the respondent was illegal and unauthorized, and passed no title to the plaintiff.
1. By statute, where goods are pledged, “ the right and interest ” of the pledgor in them may be sold on execution. (2 R. S. 366, § 20, vol. 3, p. 645, § 20, 5th ed. R. S.) This right did not exist at common law. (Stief v.Hart, 1 Comst. 28, and cases cited by Jewett, Ch. J; see also, opin. of Gardner, J. Id. p. 36 ; opinion of Gray, J. Id. p. 36 ; and also, opinion of Wright, J. Id. p. 39, 40, 41.) But this statute is only applicable to the case of a pledge, and not a mortgage of chattels ; and the only right of a mortgagor of chattels which can be sold under execution is his right of possession for a definite time ; and even this has been gravely doubted. (Hull v, Carnley, 2 Duer, 99 .) A mere equity can not be so sold. Indeed the provisions of the statute, (2 R. S. 367, § 23, vol. 3, 5th ed. p. 648, § 37,) requiring, the sale to be made in lots and parcels, is really a legislative prohibition of the sale of any
p. 369
right of possession,' or any interest, in a lump, in goods mortgaged. (Ma rsh v. Lawrence, 4 Cowen, 467. Hendricks v. Robinson, 2 John. Ch. 296. Hendricks v. Walden, 17 John. 438 , and Hull v. Curnley, supra.) Where chattels mortgaged are seized and sold in hostility to the mortgage, treating it as void,.as well as in any other cage, the provisions of the statute must he complied with. The chattels must not only be present, and in view, but must be sold in lots and parcels. Non-compliance makes the sale void. The reasons are well stated by Marvin, J. delivering opinion of the court in Warring v. Loomis, ( 4 Barb, 484 .) See also, Bakewell v. Ellsworth, ( 6 Hill, 484 , approved Stief v. Hart, 1 N. Y. Rep. 20 ;) Shelden v. Soper, ( 14 John. 352 ;) Carter v. Simpson, (7 id. 535 ;) Tifft v. Barton, ( 4 Denio, 171 ;) Ransom v. Miner, ( 3 Sandf. 693 .) Proof of the subscription of the execution, (sec. 289 of Code,) where it is not signed by an attorney, is necessary. In this case it purported to be signed by the respondent, who is a broker and not an attorney. There was no excuse for not selling the goods not included in the mortgage separately, or in lots and parcels.
III. The respondent is bound by his bidding and his silence at the sale. (Otis v. Sill, 8 Barb. 102 . Fiero v. Betts, 2 id. 633. See also Waddell v. Cook, 2 Hill, 47 ; White v. Cole, 24 Wend. 124 .)
IV. The exception to admitting the transcript was well taken. When the docket is materially defective it is not evidence of any thing,
V. The admission of the execution was erroneous. It was not an execution. Writs of - execution are process, (§289, Code.) It is not possible to determine from the contents of this paper of what court it is process.
1. Whose officer would the sheriff be while executing it ? What court could regulate his acts or control him ? What court proceed against him by attachment or otherwise ? The want of proof of its subscription has been referred to. “ District Court of the 6th District of the City of New York,” is the
p. 370
title of a court in the city of New York. (§ 1, Act of April 13, 1857, already referred to.) There is no such court as the “ 6th District Court for the City of New York,” It is not unreasonable to require exactness. No other rule is safe.
2. The authority to issue executions on judgments in these district courts is derived from the act of 1857. They may be issued “by the clerk of the court in which the judgment was rendered;” and also “ out of the court of common pleas, after the judgment has been docketed in the county clerk’s office,” (§ 51.) Section 52 provides in what way and by whom it shall be issued, and its form when “ issued out of the district court.” There is no provision in respect to its form when issued “ out of the common pleas.” Judgments rendered by justices of the peace, after transcript filed with county clerk, become judgments of the county court, (Code, § 63, and sub. 13 of § 64;) but in the case of these courts they do not become, but are only deemed, judgments of the common pleas. {Code, 68.) In the former case the justice has no longer any right to issue execution. In the latter case the right remains in the district court concurrently with the common pleas. (§ 48, Act 1837.)
3. Subdivision 13, section 64 of Code (made applicable to district courts by section 48 of act 1857,) provides that when the judgment is “ docketed with the county clerk, the execution shall be issued by. him,” &c. The same reason which induced the legislature to require this in the case of justices of the peace and justices’ courts of cities, makes it proper in the case of the Marine Court and the district courts in the city of New York.
4. Whether the form of the execution is regulated by section 52).of act of 1857, or by the Code, sections 289, 290, it is .equally defective. It must follow the. judgment, and be warranted by it. (Corwin v. Freeland, 6 How. Pr. 241 . Deyo v. Van Valkenburgh, 5 Hill, 242 . Hutchinson v. Brand, 5 Seld. 208. Cornell v. Barnes, 7 Hill, 35 . McGuinty v. Herrick, 5 Wend. 240 . Lewis v. Palmer. 6 id. 367, 369 . Wood v. Colvin, 2 Hill, 566 . Bellinger v. Ford, 21 Barb. 311 )
p. 371
5. The objection that the paper was not admissible as foundation of the respondent’s title, because the sheriff’s return of nulla Iona indorsed could not be contradicted, was a good objection. It was' not evidence except to show title, and to do this the return could not be falsified. It concluded the plaintiff and the sheriff. It is a record. The respondent’s only remedy would be to sue for a false return. It was error to allow the respondent to go on and prove a levy and sale impeaching that return.
VI. The exceptions on questions of evidence were well taken.* The proof of the presence of John Simmons in the court room, and of the check sued on could only be for the purpose of showing jurisdiction,-and patching up defects in the record, and for such a purpose it was clearly improper. (Noyes v. Butler, 6 Barb. 613 .) The proceedings of a justice’s court, though not technically a record, are in the nature of a record, and can not be proved by parol. (Posson v. Brown, 11 John. 166 ; and see also McLean v. Hugarin, 13 id. 194 ; Dygert v. Coppernall, Id. 210 ; Boomer v. Laine, 10 Wend. 525 .)
A. R. Dyett, for the plaintiff, respondent.

There are two questions presented on this appeal. One as to the sufficiency of the plaintiff’s title; the other as to the validity of the defendants’ mortgage.

The first question involves the examination of the plaintiff’s judgment and execution and of the sale made by the sheriff under it.

The plaintiff’s judgment against Tibbetts & Go., was recovered in a district court of this city, denominated in the act reducing the several acts relating to those courts, into one act, (Laws of 1857, vol. 1, p. 707,) as “ district courts of the first, second, &c., districts of that city.”

The 59th section of the act directs that the clerks of those courts shall keep a book, denominated a docket book, in which he shall enter certain particulars, defined in the various subdi

p. 372
visions of the section, and intended to contain a history of the proceedings in the action to and beyond judgment.

The 60th section makes a transcript of such docket evidence of the “facts stated therein.”

The transcript offered in evidence of the plaintiff’s judgment, contained, I think, all that is required by the 59th section, and shows the regular recovery of a judgment against the defendants therein.

If any question as to the jurisdiction of the justice over Simmons who was not served with process, could be raised by the defendant in this action, it is answered by the two facts : First the defendants were sued as joint contractors, and the service on one, gave jurisdiction, and the judgment in form was correctly entered against both; upon which .their- interest in property jointly owned by them, could be sold. And second, that the defendant Simmons was present at the trial and subjected himself to the jurisdiction of the justice.

' It was urged by the appellant’s counsel that the transcript of the docket was deficient in not stating that a transcript had been given to be filed in the county clerk’s office, as required by the 10th subdivision. The transcript was evidence only of the facts stated in it. It was not evidence of the giving of a transcript to be filed. It was necessary, and the plaintiff did prove by other testimony the filing of a transcript in the county clerk’s office prior to issuing his execution.

The provisions of the 59th section are directory merely. They impose a mere ministerial duty upon the clerks of those district courts, the omission to perform which, would not invalidate a judgment which had been regularly recovered. And if the clerk should wholly neglect to make up his docket, I apprehend the plaintiff, in any suit or proceeding, where it became necessary, could prove by other .evidence the recovery of his judgment. The docket and a transcript are made evidence, but there is. nothing in the act which makes it the only evidence, and the party may still resort to other competent evidence, to prove his judgment.

I have not been able to find that any of the objections to

p. 373
the transcript are tenable. It showed the recovery of a judgment, and that the parties and the action were within the jurisdiction of the justice, and that all the-preliminary steps had been taken to make the judgment regular. ' Whatever was omitted, was not essential to the right to issue execution, other proof having been offered and received, to supply any such deficiency. .

I think the objections to the execution were more to its form than to its substance.

The 289th section of the Code prescribes what shall be contained in an execution, and it seems to me the execution which was issued upon the plaintiff’s judgment contained every fact required.

It was directed to the sheriff; subscribed by the party issuing it; intelligibly referred to the judgment; stated the court and county-where the judgment was recovered and transcript filed; names of parties, &c. Nothing more was required to be stated. The teste was no necessary part of the execution ; nor was the direction to return, and, therefore, any errors in them were immaterial.

I think the objections to the execution were properly overruled.

The sheriff, under the execution, sold only the right, title and interest of Tibbetts & Co. in the goods; in other words, he sold the equity of redemption of Tibbetts & Co.. In a sale of this kind, the sheriff must necessarily sell' the property in bulk, and would not be permitted to sell it separately or in parcels. The mortgagee has the right, when his right to take possession accrues, to follow the property and seize it under his mortgage, and it could not be tolerated that in selling, in effect, subject to the mortgage, he could distribute it among a multitude of purchasers. As I understand it, the sale was in bulk in Hull v. Carnley, ( 11 N. Y. Rep. 501 ;) and Tifft v. Barton, ( 4 Denio, 171 .)

The question of actual levy was left upon the evidence to the jury. The testimony was somewhat contradictory ; but

p. 374
the jury have passed upon it, and it was sufficient to sustain their verdict.

It was objected that the property sold by the sheriff was not present in view of the purchasers at the sale. There' was evidence, however, both ways on that subject, and the learned judge carefully submitted it to the jury, that the plaintiff could recover for the value of such property only as was present at the sheriff’s sale, within the view of the bidders.

The charge in respect to the levy and sale was favorable to the defendant, and no exception was taken to it.

We were not referred -on the argument, nor have I been able to find, any case, deciding that any one, beside the defendant in the execution, .can object to the manner of making the sale. It would seem that it does not lie with any other party to insist that the sale shall be, in all respects, conformable with the requirements of the statute.

Be it so, however, that the defendant as mortgagee out of possession, may object to the sufficiency of the sale, then we are brought to the remaining question, namely, as to the validity of the defendants’ mortgage.

The case of Edgell v. Hart, ( 9 N. Y. Rep. 213 ,) is decisive, I think, that a mortgage containing a provision like that contained in the defendant’s mortgage is void as to creditors. In that case the mortgage was made “ to include, also, all other articles of Wee nature, which may be put, or be in said store, whenever the party of the second part may be entitled to enforce the within mortgage,” and the whole mortgage was held void. In this case it was submitted to the jury as a question of fact, for them to determine upon the evidence, whether the mortgage was made with intent to hinder and delay creditors. It would not have been going too far, I think, for the judge to have instructed the jury that the mortgage was void in law, as intimated in the opinion in Edgell v. Hart, (supra, p. 219 ;) but the judge chose to leave it to the jury, to be determined as a question of fact, and they have found against the defendant on that issue.

The plaintiff having established his judgment against Tib

p. 375
betts & Oo., was in a position to attack the defendant’s mortgage, and his purchase under his execution at the sheriff’s sale did not deprive him of this right. (Hildreth v. Sands, 2 John. Ch. 36.) He did not purchase subject to the mortgage. He merely purchased the interest of Tibbetts & Co., which interest was conveyed by a mortgage which was or was not valid. There was nothing, therefore, in the sale or purchase that estopped the plaintiff from questioning the validity of the Tibhetts mortgage.

If the views which I have here expressed are correct, they dispose of all the questions raised upon the motions to dismiss the complaint', as well as to the exception to the refusals to ■charge, and to the charge itself.

The verdict was for the value of a portion only of the goods taken ; for what portion does not appear. The evidence shows, however, that the defendant had seized and sold under the mortgage a considerable amount in value, of property not covered by the mortgage, and which the plaintiff had purchased at the sheriff’s sale. In respect to that the learned judge charged the jury that “ such property as was acquired by Tibbetts & Co. after the mortgage was given, was not legally embraced in the mortgage ;” That Simmons had no right to take and sell that property, and that the plaintiff was entitled to recover its value.

In looking at this case, we are to see whether the evidence sustains the verdict, under the charge of the judge, for to this part of the charge there was no exception.

It is impossible to say whether the verdict was or was not for the value of such property only, as- was acquired by Tibbetts & Oo. after the mortgage was made.- If so,- it could not be disturbed. To that extent the plaintiff .was clearly entitled to recover, and if it is necessary, in order to sustain the verdict, I think we are bound to assume that such was the verdict.

The inquiry of the witness, John Simmons, was properly excluded. There was no evidence of any interference with the property, by the deputy sheriff. At most, the question bore upon the levy; but it was too remote to affect that question.

p. 376
The declarations of the parties to the mortgage, were not admissible to sustain the mortgage as against a judgment creditor, and were properly excluded.

It was, perhaps, not competent to prove the judgment in the district court by parol, if such proof was necessary, which I think was not. In these courts, the judgment pronounced by the judge is entered in the docket by the clerk, and as we have seen, his omission to do so would not invalidate the judgment nor render it unavailing. I think it wás competent to prove that John Simmons was present at the trial in the district court, and that the check was the copartnership check of Tibbetts & Co. Independently of the judgment, the plaintiff, as a creditor of Tibbetts & Co. could attack the mortgage, and the evidence tended to prove him, such creditor. It did not contradict the record, nor go to sustain it.

The exclusion of any evidence by the defendant of the nature of the debt evidenced by the check, unless the defendant would put the check in evidence, it being offered to him by the plaintiff for that purpose, was proper. The condition was in the discretion of the judge, and can not be reviewed. ,

It was immaterial whether Tibbetts was present at the trial in the 'district court or not. The defendants then were joint contractors, and, as I ’before stated, the judgment was prop7 erly in form against both, and would reach their joint property, although no service was made upon one of the defendants. Hence it was proper to exclude all inquiry on that subject.

I have thus briefly reviewed the. exceptions taken by the defendants to the admission and rejection of evidence. I can not find that any of them are well taken; and am,, therefore, of opinion that the judgment and order appealed from should be affirmed.

Cases cited