Sweet v. Lawrence ( 1861 )

By the Court, Welles, J.

The only question for our determination is, whether the priority of the Welch morgage was lost by the neglect to file in the office of the auditor of the canal department, the statement provided for in the first section of the act entitled “ An act to provide for the registry of liens and incumbrances upon boats and crafts navigating the canals of this state,” passed April 15th, 1858. (Laws of 1858, ch. 247, p. 396.) The third section of that act declares the effect of thus filing such statement. It is, that the claims and liens to which the statement refers shall, from the time of such filing, have preference and priority over all other claims and liens, in the same manner and to the like extent of claims and liens arising on chattel mortgages filed and ... entered in towns where the mortgagor resides, but shall not have any priority over existing liens and claims. The only change made by this statute, in the law of chattel mortgages, which I have been able to discover, is to allow a person holding a chattel mortgage upon property of the description enumerated in the first section of the act, to prevent his mortgage from ceasing to be valid as against the creditors of the person making the same, or against subsequent purchasers or mortgagees in good faith, after the expiration of one year from the filing thereof, by filing the statement and affidavit mentioned in the first section of the act, in the office of the auditor, instead of producing the same result by filing a copy of the mortgage with a statement as required by the law as it existed before the passage of the act under consideration, with the clerk or register of the town or city where the mortgagor resided at the time of filing such copy and statement. (Less. Laws of 1833, ch. 279, § 3. 3 R. S. 5th ed. p. 223, § 11.)

The defendant’s theory and construction of the act of 1858, referred to, contemplates the filing of the statement, mentioned in the first section, in the auditor’s office, as necessary to give the mortgage any priority whatever in the first instance, or when first filed according to the previous statute. This I think is a mistake; for the reason that the effect of filing the statement in the auditor’s office is declared to be as above set forth, and provides, in the same connection, that it shall not have any priority over existing liens and claims. The third section distinctly recognizes the validity of liens by chattel mortgage protected and preserved by filing a copy of the mortgage- and statement within the last thirty days of the year from the filing of the original mortgage, in the towns where the mortgagor resides at the time of filing the copy and statement. And it gives the filing of the statement in the auditor’s office the effect of preserving a preference and priority over all other claims and liens, &c., in the same manner and to the like extent of claims and liens arising on chattel mortgages filed and entered in towns where the mortgagor resides. It does not give them any higher or better claim. It does not, in terms, nor, as it seems to me, in its scope or object, disturb liens entered and preserved in pursuance of the previous statute, but, on the contrary, in express terms guards against such a construction. The terms of the act are exceedingly loose, inartificial and obscure. But if it is not felo de se, if it can bear a construction so as to have any effect, it is, I am satisfied, such as I have given to it. These views lead to an affirmance of the judgment appealed from, which I think should he our decision.

[Monroe General Term, December 2, 1861.

The other members of the court concurring in the foregoing views, the judgment is affirmed.

Welles, Smith and Johnson, Justices.]