Chandler v. Bunn

1 Hill & Den. 167

• Court: New York Supreme Court
• Decided: July 1, 1843
• Status: Published

Opinion

By the Court,

Nelson, Ch. J.

The statute requires the mortgage to be filed in the town where the mortgagor re'sides at the time of the execution. (2 R. S. 136, § 10.) The fact of the place of residence controls the place of filing, not the recital of it in the instrument; that seems to be of no importance, and might for the matter of the security be omitted altogether. The learned judge, therefore, gave too much consideration to the circumstance; especially in holding that the plaintiff was estopped from showing the truth, against the recital. It certainly did not work a technicol estoppel upon him under any rule of evidence; in order to this, generally speaking, it must be mutual, and bind both parties. Now there is no pretence for saying the judgment creditors would be estopped, if material to their rights, from showing the truth on the trial.

Besides, it is not the recital of the mortgagee, but of the mortgagor, as he is the only party executing the instrument.

In any view of the case, it seems to me the learned judge erred, and that a new trial should be granted.

New trial granted. .