Henry Crouse, as Administrator, etc., of Walter Crouse, Deceased, Appellant, v. William M. Schoolcraft and Others, Respondents

Henry Crouse, as Administrator, etc., of Walter Crouse, Deceased, Appellant, v. William M. Schoolcraft and Others, Respondents. Chattel mortgage not filed—it is void as to a simple contract creditor of the mortgagor — irregular execution issued on a judgment recovered by the contract creditor. Where a chattel mortgage, covering property left in the possession of the inort- ■ gagor, is not filed until some two months after its execution, it is void as against a simple contract creditor of the mortgagor, whose claim accrued prior to the execution of the mortgage, and the filing of the mortgage before the creditor obtains a judgment upon his claim does not render the mortgage valid from and after the date of the filing. The mortgage being void" as against the judgment, the mortgagee cannot complain of the taking of the property under an execution issued thereon,, even if the execution was irregularly issued. Assuming that, in the event of a loss of the original execution, a" duplicate thereof issued without an order of "the court is irregular, the irregularity can he-taken advantage of only by the defendant in the execution. Appeal by the plaintiff, Henry Crouse* as administrator, etc., ;of Walter Crouse, deceased, from a judgment" of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Schoharie on the 10th day of January, 1900, upon, the decision of the court rendered after a trial at the Schoharie Trial Term before the court without a jury. The defendant Albert Getman recovered judgment against one Clark ■ Crouse, August 11, 1898, upon a note given in April, 1887.-•Such judgment was- entered in Montgomery county, and on August .12, 1898, a transcript thereof was filed and' docketed in Schoharie -county. On the same day an execution was issued on such judgment and delivered to the sheriff of Schoharie county, who passed the same over to the- defendant Schoolcraft, as one of his deputies, to be by him executed. Schoolcraft lost such execution before any levy was made, and a duplicate was sent him by the plaintiff’s attorney. After receipt of such duplicate he proceeded to levy the same upon certain personal property which he found in the possession of said Clark Crouse, and subsequently sold it in satisfaction of such judgment. On the lltlr of January, 1898, said Clark Crouse executed to Walter Crouse a chattel mortgage upon the property so sold, to secure a valid debt then owing from Clark to said Walter Crouse. -Such mortgage was not filed until the 8th day of March, 18.98, and the property remained in the possession of said mortgagor until the sale aforesaid. The mortgagee, Walter Crouse, commenced an action against these defendants-for the unlawful sale and conversion of such property. He subsequently died and this plaintiff, as his administrator, revived and continued such action. Upon the trial before the court,, without a jury, the complaint .was dismissed with costs, and from the judgment so entered this appeal is taken. L. W. Baxter, for the appellant. Charles Irving Oliver, for the respondent Schoolcraft. Anson Getman, for the respondents Getman. [MAJORITY — Parker, P. J.:] Parker, P. J.: The chattel mortgage under which the plaintiff claims the property in question was utterly void as against the judgment creditor, Albert Getman. Hot having been filed until some two months after its execution, it was_ void as against Getman from the time it was given, although he was then only a simple contract creditor. The fact that it was filed before Getman obtained a judgment upon his. note did not'give it validity at and after that date. This is distinctly held in. Karst v. Gane (136 N. Y. 316, 324), and has not, in my judgment, been since overruled or modified. (See, also, Thompson v. Van Vechten, 27 N. Y. 568.) Although the mortgage was, by force of the statute, void as against. Getman, from the time of its execution, he was not in a position to-avail himself of that fact, nor to make any claim to the property mortgaged, until by some legal process he had impressed upon it alien for the amount of his debt. But as soon as he had obtained, his judgment and issued execution to the sheriff, he had acquired that lien ; and from that time his right to- take possession of the* property and appropriate it to the satisfaction of his debt was superior to the plaintiff’s claim. It is claimed by the .plaintiff that the defendants proceeded in an irregular manner to take and sell the property, and that, hence, this, .action may be maintained. There is no dispute but that execution had been regularly issued, to the sheriff of Schoharie county on Getman’s judgment, and that, the defendant Schoolcraft was the sheriff’s deputy and authorized to-execute it. From the time of the issuing of such execution, Get-man had obtained the lien which authorized him to take the property as against the plaintiff’s mortgage. Even if it be conceded that, the issuing of the duplicate execution, under which the sale was had,, was an irregularity, nevertheless, the proceeding by the defendants-was but a taking of this property for the satisfaction of Getman’sjudgment. It was applied on such judgment, and the plaintiff’s only interest in such property being that which he acquired through, this mortgage, he cannot complain of such application, inasmuch as his mortgage, as against- such judgment, is utterly void. If, under the circumstances of this case, the issuing of the duplicate execution was irregular without an order of the court, it but rendered the process voidable at the option of the defendant. It hvas not void, and, hence, none but the defendant in the execution, could take advantage of such irregularity. It was so decided by the General Term in this department in the case of Horton v. Borthwick, reported in 15 Weekly Digest, 309, 310. That it was, at most, irregular and not void, see Encyclopaedia of Pleading and Practice (Yol. 8, p. 441). As to the claim that the execution has never been regularly returned, I do not see that it would in any way affect the plaintiff’s rights as a mortgagee if it never is returned. I conclude that the judgment should be affirmed, with costs. All concurred. Judgment affirmed, with costs.