Dillingham v. Bolt (37 N.Y. 198, 1867)

Parker, J.

(after stating the facts.)—As against Par-melee, Everts & Co., who purchased before the expiration of the year from the first filing of the mortgage, no refiling with a statement was necessary. It was held in Meech v. Patchin (14 N. Y. 71), that the omission to refile a chattel-mortgage, pursuant to the 3d section of the act on that subject (Laws nf 1833, p. 402), does not render it invalid against 'purchasers or mortgagees, intermediate the original filing, and the ending of the year; and that the term “subsequent,” in the .provision in that section that “every mortgage filed in pursuance of this act shall cease .to be valid, as against the creditors of the person making the same, or against subsequent purchasers or mortgagees in good faith, after the expiration of one year from the -filing thereof, unless,” &c., means subsequent to the expiration of the year, that is, after the time of refiling has elapsed. Had these purchasers, therefore, who purchased before the expiration of the year, continued to be the Owners until the 2d September *1856, when the defendant Ladue took the property under his - mortgage, there could be no pretence, inasmuch as they were not subsequent purchasers, that they could have held it against the mortgage,, even if there had been no attempt to file the copy and statement.

The plaintiff purchased of them, after the year. Is ' he, within the meaning of the act, a subsequent purchaser ? The general term held he was not, but stood in the shoes of Parmelee, taking no better right than he had; and, therefore, decided, that the defendants, under the mortgage, had the better claim, and reversed the judgment. In this view of the case, I cannot but think the general term erred. It seems very clear to me, that the plaintiff is a subsequent purchaser, within the meaning of the act.

The statute does not expressly limit the term “purchaser” to the purchaser directly from the mortgagor, nor do I think there is any such limitation implied or intended. The object of the original filing of the mortgage is to give public notice of the lien, thereby affixing to the property mortgaged, as it were, an ear-mark, indicating, to all persons who could purchase it, the existence of the lien; and this, not only while remaining in the hands of the mortgagor, but in whose hands soever it may be. The effect of this notice attends the property, as it passes from hand to hand, during the year, so that no purchaser, however remote from the mortgagor, can hold it as against the mortgage. As the filing of the mortgage is to avail the mortgagee, as notice of the lien, not merely to the immediate purchaser from the mortgagor, but to all subsequent vendees—so that the requirement to file it, and thus give the notice, was in order to protect purchasers, not from the imposition of the mortgagor alone, but against that of all the successive purchasers from him, down to the end of the year. As the notice is for the benefit of all purchasers, during the year, all are entitled to it, and all may take advantage of its omission.

The same is true of the refiling and statement required by the 3d section of the act. The object of that is merely to extend and continue in operation the effect of the first ^filing, as to the amount remaining unpaid, for another year. I can see no reason therefore, why the plaintiff, although his purchase was not directly from the mortgagor, but from his vendee, is not to be deemed a subsequent purchaser, within the meaning and intent of the act, as well as within its terms. If he was, then the refiling and statement required by the 3d section was necessary, to prevent his bond fide purchase from overreaching the mortgage, and giving him a title unincumbered by it.

It is said, however, by the respondent’s counsel, that a person cannot convey a better title than he has, and, therefore, the plaintiff acquired, by his purchase from Parmelee, no better title than Parmelee had, which was a title subject to the lien of the mortgage. The principle invoked by the counsel can have no application, I apprehend, to cases under the registry laws. The mortgagor, Thistle, for example, subsequently to the giving of the mortgage, had no legal title to the canal-boat. And yet, if he, remaining in this state, had retained it, until after the expiration of the year, and then sold it to the plaintiff, in the absence of the refiling, no one would doubt, that plaintiff would have held it free from the lien of the mortgage, notwithstanding Thistle’s right was subject to the mortgage. But for the fact, then, that Thistle had left the state, and, during the thirty days next preceding the close of the year, did. not reside in it, I should be very clearly of the opinion, that the judgment of the general term ought to be reversed.

Tne question arises, however, whether such removal and non-residence did not render the refiling unnecessary ; although, at first view, it would seem, that the requirement of the statute, making a refiling necessary, within thirty days of the expiration of the year, cannot apply to cases where-the mortgagor is not, during the thirty days, a resident of the state, because the refiling is specifically required to be in the office of the clerk of the town “where the mortgagor shall then reside,” which requirement is nugatory, if the mor\§aSor does not reside in the state. *Still, in view of the specific provision of the same section, that “ every mortgage filed in pursuance of this act shall cease to be valid, as against subsequent purchasers in good faith, after the expiration of a 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, &c., shall be again filed in the office of the court of the town where the mortgagor shall then reside,” we think, it must be held, that, when the contingency occurs which has happened in this case, the mortgagee must, as against the creditors and purchasers mentioned in the section, take advantage of his mortgage, within the year, or lose the benefit of it as against them. The declaration that it shall cease to be valid, unless refiled, was, we think, intended to operate as well when the refiling was rendered impossible by the removal of the mortgagor, as when it was omitted for any other reason.

The refiling made, in the case before us, in the town where the mortgagor had formerly resided, was of no avail, and it is unnecessary to examine the question, whether the statement was such as the statute requires. It follows, that the lien of the mortgage had ceased as against the plaintiff, and the referee was right in ordering judgment in his favor. The judgment of the general term reversing that judgment was, therefore, erroneous, and must be reversed.

Order reversed, and judgment of the special term affirmed.

But a chattel-mortgage is valid as against one who purchased with knowledge of it, though not filed or renewed; Gildersleeve v. Landen, 73 N. Y. 609.