
    George M. Mittnacht, Appellant, v. John Kelly, Sheriff, etc., Respondent.
    By the terms of a chattel mortgage, the mortgagor mortgaged, besides his 'horse, wagon and harness, “ the whole stock of trade in goods, wares and merchandise, the whole concern forming my grocery and liquor store, known as No. 93 Third street, in the city of New York, with the increase and decrease thereof,” and until default in the payment of the money secured, the mortgagor was “to remain and continue in the quiet and peaceable possession of the goods and chattels, and the full and free enjoyment of the same.”
    
      Held, that the interest was not to create an absolute lien, but a fluctuating one; and the mortgage was therefore void.
    Though the horse, harness and wagon, were not subject to the fluctuating lien applicable to the stock in trade, yet, as the mortgage was fraudulent as against creditors in the matter of the stock in trade, it affected the whole instrument, and was wholly void.
   Parker, J.

The defendant was sued in the Court of Common Pleas of the city of ¡New York, for levying upon a horse, wagon and harness which the plaintiff claimed under a chattel mortgage which had been -executed to him by the execution debtor.

The mortgage was given on the 12th of August, 1859, and the execution was issued on the 27th of September, 1859. Joseph Zorn, the mortgagee, carried on a family grocery store in Third street, in the city of ¡New York. By the terms of the mortgage and schedule, he mortgaged, in addition to the property in controversy, “the whole stock of trade in goods, wares and merchandise, the whole concern, forming my grocery and liquor store, known as NTo. 93 Third street, in the city of ¡New York, with the increase and decrease thereoff etc., and until default in the payment of the money secured, the mortgagor was “ to remain and continue in the quiet and peaceable possession of the goods and chattels, and the full and free enjoyment of the same.”

Upon the trial the court dismissed the complaint upon the ground that the mortgage was void upon its face, as against the execution creditor, and judgment was entered for the defendant. The General Term affirmed the judgment, and the only question brought by the appeal to this court is, ? whether the mortgage is void upon its face.

The mortgaging the whole stock in trade—the whole concern forming the grocery and liquor store of the mortgagor— ■with the increase and decrease thereof, and the providing for the continued possession of the mortgagor, can have no other meaning than that the mortgagee should all the time retain a lien on the ■ whole stock, by way of mortgage, the mortgagor making purchases from time to time and selling off in the ordinary manner, the intent being not to create an'absolute lien upon any property, but a fluctuating one, which should open to release that which should be sold, and take in what -should be newly purchased. This is just such an arrangement as was held in Edgell v. Hart (5 Seld. 213), to render the mortgage void. The case cannot be distinguished from that, and the law as pronounced in that case must be held applicable to this.

. True, in this case, the horse, wagon and harness in question did not constitute part of the stock in trade, which was the subject of the “increase and decrease ” spoken of, yet if, as to the stock in trade, the mortgage was fraudulent as against' creditors, that fraud infected the whole mortgage, and it is wholly void. (Goodrich v. Downs, 6 Hill, 438; Mackee v. Caines, 5 Cow. 547, 580; Grover v. Wakeman, 11 Wend. 187, 225.)

I am of the opinion, therefore, that the judgment appealed from shall be affirmed.

All the judges concurring,

Judgment affirmed.  