Bishop v. Cook

13 Barb. 326, 1850 N.Y. App. Div. LEXIS 17

• Court: New York Supreme Court
• Decided: September 5, 1850
• Status: Published

Opinion

By the Court, Welles, J.

It is now well settled, that in the case of a chattel mortgage, the question whether the mortgage was given for a valuable consideration, in good faith and without an intent to defraud creditors, is one for the jury, and cannot be taken from them.

The only question that remains in the present case is whether the mortgage under which the appellant claimed, was properly filed, on the 20th October, 1845. At that time there was a vacancy in the ofiice of town clerk in the town of Avon. The vacancy continued until after the respondent’s execution was levied. The cause of the vacancy does not appear. The bill of exception shows that one Estee had the keys of the office, and the mortgage in question was placed by him among the chattel mortgages in the office on the day mentioned, and indorsed by him “Filed Oct. 20th, 1845.”

The statute is that the mortgage shall be void as against creditors, &c. unless the mortgage, or a true copy thereof “ shall be filed in the office of the town clerk,” &c. (Laws of 1833, ch. 279, §§ 1, 2. 2 R. S. 3d ed. 196, §§ 9,10.)

Webster defines the verb transitive, to file, as follows: “1. To string, to fasten, as papers, on a line or wire for preservation. Declarations and affidavits must be filed ; an original writ may be filed after judgment. 2. To arrange or insert in a bundle, as papers, indorsing the title oh each paper. This is now the more common mode of filing papers in private and public offices. 3. To present or exhibit officially, or for trial, as, to file a bill in chancery.” It is clear to my mind that the meaning of the word, as used in the statute, is that contained in the second definition. Estee, who appears to have had charge of the office, and the custody of the papers, and who perhaps may be regarded as the town clerk de facto, at the time, received the mortgage, marked upon it the time, and. placed it among the chattel mortgages in the office. This, in my opinion, was filing it, within the meaning of the statute. It is a mistake to suppose that the marking or indorsing on the paper the time of filing it, is the substantial thing, or the act of filing. Such indorsement is merely a memorandum of the time of the filing, and not the filing itself. The filing consisted in presenting the mortgage at the office and leaving it there, and depositing it in the proper place with the papers in the office. This was done in the present case, and was all the appellant, under the circumstances, could do, and all the law required of him. Although there was no town clerk de jure, there was a town clerk’s office, and a town clerk defacto.

[Monroe General Term, September 5, 1850.

Welles, Selden and Johnson, Justices.]

If there had been no vacancy in the office of town clerk, the party should not be deprived of his rights by the neglect of the officer to mark upon the mortgage the time of filing it.

The judgment of-the county court should be reversed, and a new trial awarded in that court, with costs to abide the event.