Sheldon v. Wickham

Appellate Division of the Supreme Court of New York

Sheldon v. Wickham

50 N.Y.S. 314

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMarch 2, 1898

StatusPublished

This text of 50 N.Y.S. 314 (Sheldon v. Wickham) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Sheldon v. Wickham, 50 N.Y.S. 314 (N.Y. Ct. App. 1898).

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LANDON, J.

I think, under Stephens v. Perrine, 143 N. Y. 476, 39 N. E. 11, 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 nonexistent. The mortgagor could therefore assign or transfer the property to satisfy his existing bona fide 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 nonexistent mortgage; therefore none at all. If we say that the mortgagor could not assign except subject 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 be affirmed.

HEEEIOK, J., concurs. PAEKEE, P. J., concurs in the result.

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LANDON, J.

I think, under Stephens v. Perrine, 143 N. Y. 476, 39 N. E. 11, 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 nonexistent. The mortgagor could therefore assign or transfer the property to satisfy his existing bona fide 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 nonexistent mortgage; therefore none at all. If we say that the mortgagor could not assign except subject 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 be affirmed.

HEEEIOK, J., concurs. PAEKEE, P. J., concurs in the result.

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50 N.Y.S. 314, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sheldon-v-wickham-nyappdiv-1898.

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