Sheldon v. Wickham

27 A.D. 628

Opinions

Landon, J.:

I think, under Stephens v. Perrine (143 N. Y. 476), we must hold that as the plaintiff did not file his mortgage it was void as to creditors to the same extent as if it was non-existent. The mortgagor could, therefore, assign or transfer the'property to satisfy his existing bona Jide creditors. He did that by assigning to Hillis for their benefit-. Whatever rights the creditors had Hillis has, and the only obstacle to his title is a void or non-existent mortgage—therefore, none at all. IC we say ¿bat the mortgagor could not assign except-subjecfc to the plaintiff’s rights, that does not help the plaintiff, because he had none against the creditors. Hence plaintiff’s mortgage is invalid as to personal property, and the judgment" should beaffivmed. Herrick, J.,concurred;Parker,. P J, concurred in result; Putnam and Merwin, JJ., dissented.