H. H. Camp v. G. S. Camp

2 Hill & Den. 628

• Court: New York Supreme Court
• Decided: May 15, 1842
• Status: Published

Opinion

By the Court,

Cowen, J.

The plaintiff's title to the one horse wagon depended on the question, whether the possession of the property, of which he took a mortgage from Henry W. Camp, was actually delivered, within the meaning of the statute for the protection of creditors against fraudulent transfers.

Henry W. Camp was left in possession as the plaintiff’s agent, to manage the property for him; and this the judge put to the ■jury as an actual change of possession from mortgagor to mortgagee. The mortgage was not filed, and the statute declares such a mortgage absolutely void as to creditors, if it be not accompanied by an actual and continued change of possession. We are of opinion the learned judge erred. Actual change of possession, imports at least something more than a mere legal or fictitious change, to be worked by the operation of the mortgage itself. Upon any other construction the statute means nothing. Nor can parties agree that the mortgagor shall continue in actual possession, and call this the possession of the mortgagor.

New trial granted.