Nitchie v. Townsend — 4 N.Y. Super. Ct. 299

Majority

p. 299

Nitchie v. Townsend.

Headnote

In order to preserve the lien of a chattel mortgage from year to year, a copy thereof, with a statement exhibiting the interest of the mortgagee in the property, must be filed in the office of the register or clerk, within thirty days preceding the expiration of one year from the time of filing the mortgage ; and a new copy must be filed every successive year.

Every copy thus filed, is to be regarded as a new mortgage.

N. was the holder of a chattel mortgage upon the property of C., which was filed June 22, 1846. A copy, with a statement of the mortgagee’s interest, was filed June 18, 1847. T. recovered a judgment against C., and issued an execution thereon, by virtue of which the mortgage property was levied upon on the 19th of Jnne, 1848, at noon. A second copy of the mortgage, with the statement, was filed on the same day, at 40 minutes past 2 o’clock, P. M., after the levy, (the 18th being Sunday.) Held, that the copy filed on the 18th of June, 1847, ceased to be valid as a lien against creditors, in one year from that time ; that although the 18th of June was Sunday, that day must be computed ; and that the execution must prevail, as against the mortgage.

Nov. 27;

Dec. 30, 1848.

This cause was submitted on a case made under the 372d section of the Amended Code. The facts are these; On the 22d day of June, 1846, one Ambrose Cormier made and executed to the plaintiff, a mortgage upon his goods and chattels, then being on the premises occupied by him as a residence and place of business, in Walker street in the city of New York, to secure to the plaintiff $643 50, due to him for arrears of rent upon the same premises, on the 21st day of June, 1845. This mortgage was filed June 22d, 1846. On the 18th of June, 1847, at 50 minutes past 10 o’clock, a copy of the mortgage and schedule annexed, was filed in the office of the register of the city and county of New York, with a statement m writing, signed by the mortgagee in conformity with the statute, that the whole of the principal and interest secured by the mortgage, remained due and unpaid. On the 19th of June, 1848, at 40 minutes past 2 o'clock, P. M., another copy of the mortgage and schedule was filed in the register’s office, with the following statement endorsed thereon:

p. 300

“ I, John E. Nitchie, the mortgagee of the mortgage, of which the foregoing is a true copy, do hereby certify that there remains due to me on the said mortgage, the whole of the principal with interest; and that this copy and certificate are filed to continue the notice required by the statute in such case made and provided.

“ Given under my hand, this 19th June, 1848.

“ John E. Nitchie.”

The defendant in this cause was the owner of a judgment for $577 03, recovered against Cormier on the 30th day of May, 1844, in the superior court of the city of New York. On the 19th day of June, 1848, the day of the filing of the last copy of the mortgage, but at half past 12 o’clock of that day, the defendant’s attorney issued an execution upon the judgment for the amount due thereon, and delivered the same to the sheriff, who levied it on the goods and chattels of Cormier which were embraced in the mortgage to the plaintiff. The levy was made by the sheriff on the same day, and before the last renewal had been made, and the copy of the mortgage and schedule filed.

G. M. Speir, for the plaintiff.

D. M. Cowdrey, for the defendant.

The only question in this case arises under the act requiring mortgages of personal property.to be filed.

One Cormier executed a mortgage of personal property to the plaintiff, which was first filed June 22, 1846. A copy was filed June 18th, 1847, at 50 minutes past 10 o’clock, A. M. The defendant recovered a judgment, and issued an execution against Cormier, by virtue of which the property covered by the mortgage was levied upon on the 19th of June, 1848, at noon, before the filing of another copy of the mortgage, which was filed on the same day, but after the levy. The 18th of June was Sunday. The act provides, that “ Every mortgage filed in pursuance of the act, shall cease to be valid against the creditors of

p. 301

the person making the same, or against subsequent purchasers and mortgagees in good faith, after the expiration of one year from the filing thereof, unless within thirty days next preceding ■the expiration of the said term of one year, a true copy of such mortgage, together with a statement exhibiting the interest of the mortgagee in the property thereby claimed by him by virtue thereof, shall be again filed in the office of the clerk or register of the town or city where the mortgagor shall then reside.”

We think, that in order to preserve the lien of the mortgage, it is necessary to file a new copy within thirty days preceding the expiration of the first year, and so on from year to year, if the mortgagor wishes to continue his lien. Every copy thus filed must be regarded as a new mortgage.

ft being necessary to file copies every successive year, we are also of opinion, that the copy filed on the 18th of June, 1847, at 50 minutes past 10 o’clock, ceased to be valid, as a lien against creditors, in one year from that time; and although the 18th of June was Sunday, that day must be computed. The day of filing the copy, does not relate back to the day of filing the original mortgage. The execution of the defendant here, must prevail as against the mortgage.

Judgment accordingly.