Dunham v. Whitehead

3 Abb. Pr. 207

Opinion

Roosevelt, J.

Where a chattel mortgage is impeached on the ground that the debt was not really due, the production of a promissory note is prima facie evidence in the first instance of a just debt, and needs no confirmatory proof, unless the plaintiff establishes a case of reasonable suspicion as to the bona fides of the transaction.

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A new trial must be ordered; the costs to abide the event.

As the law has stood since the act of 1833 Laws of 1833, ch, 279 ; 2 Rev. Stats., 318, $$ 9-14), providing for the filing of chattel mortgages, the burden of proof is upon the party claiming under such mortgage to show that it was made in good faith and without any intent to defraud creditors or purchasers. This is so, notwithstanding that the mortgage has been duly filed. The filing of the mortgage does not operate to cure it of the suspicion which attaches to every transfer of personal property unaccompanied by change of possession. Filing is not even prima facie evidence of the validity of the mortgage. It only permits the party to give evidence to rebut the presumption of fraud arising ■ from the want of change of possession. If the mortgage is not filed, it is, to use the words of the statute, “ absolutely void ” as against creditors and purchasers. (Gardner v. Adams, 12 Wend., 297; Murray ». Burtis, 15 lb., 212 ; Doane v. Eddy, 16 lb., 253; Wood v. Lowry, 17 lb., 495; Smith v. Acker, 23 lb., 653; Cole v. White, 26 lb., 511 ; Griswold v. Sheldon, 4 Comst., 581; Thompson v. Blanchard, lb. 303 ; Otis v. Sill* 8 Barb., 108 ; Groat v. Rees, 20 lb. 26).