
    Edmund Steward, App’lt, v. George W. Cole, Resp’t.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed January 25, 1887.)
    
    1; Chattel mortgage—Refiling of—3 R. S., 3349—Valid as against . MORTGAGOR THOUGH NOT REFILED.
    Plaintiff claimed property by virtue of a chattel mortgage executed by H. B., September 33, 1884, to secure payment of $500 in one year from the date thereof. Defendant claimed it as receiver of H. B., appointed in supplementary proceedings. The mortgage was filed on the day of its execution, and the money for which it was given as a collateral security became due a year from that date and was not paid. The mortgage was not refiled until October 19, 1885. On September 33, 1885, an order for the examination of H. B., the judgment debtor, was served, and November second, defendant was appointed as receiver and on November seventeenth took possession of the property. 3 R. S., 3349 provides that every mortgage or conveyance intended to operate as a mortg ge of goods and chattels which shall not be accompanied by immediate delivery, etc., shall be absolutely void as against the creditors of the mortgagor and as against subsequent purchasees and mortgagees in good faith, unless the mortgage or a true copy thereof shall be filed as directed by the statute; and that every mortgage filed shall cease to be valid as against the creditors of the mortgagor or subsequent purchasers or mortgagees in good faith after the expiration of one year from the filing thereof, unless within thirty days next preceding the expiration of the year a true copy of the mortgage, together with a statement exhibiting the interest of the mortgagee in the property shall be again filed. Held, That the failure to refile the mortgage rendered it void as to creditors of the mortgagor and subsequent purchasers or mortgagees in good faith, but not as against the mortgagor.
    3. Same—Receiver in supplementary proceedings stands in the PLACE OP THE JUDGMENT DEBTOR—MORTGAGE VALID AS AGAINST RECEIVER.
    
      Held, That a receiver appointed and qualified is vested with the property of the judgment debtor from the time of filing the order appointing him, and where the appointment was made in supplementary proceedings his title to personal property relates back to the time the special proceeding was instituted. That the receiver, however, did not stand in the place of a creditor, and that inasmuch as the mortgage was valid as against the mortgagor it was also valid as against the receiver.
    3. Same-Rights op judgment creditor.
    
      Held, That the judgment creditor had the right to issue an execution and levy on the property in question, and had he done so after the expiration of the year and before the mortgage had been refiled, his right to sell would have been unquestionable, but having failed so to do his remedy was gone.
    Appeal from a judgment of the- Cattaraugus county court reversing the judgment of a justice’s court.
    
      Charles Z. Lincoln, for appl’t; P. B. Coxe, for resp’t.
   Haight, J.

This action was brought to recover the possession of a pair of oxen. Plaintiff claimed the property by virtue of a chattel mortgage executed by Horace B. Brown, September 22, 1884, to secure the payment of $500, in one year from the date thereof. The defendant claimed the property as the receiver of Brown appointed in supplementary proceedings upon a judgment. The mortgage was filed September 22, 1884, and the money for which the mortgage was given as a collateral security became due on the twenty-second day of September, 1885, and was not paid. The mortgage was not refiled until October 19, 1885. On the twenty-third of September, 1885, the order for the examination of Brown, the judgment debtor, was served, and the defendant was appointed receiver November second, and took possession of the oxen on November seventeenth thereafter.

The question presented upon this appeal is whether or not the mortgage is void as to the receiver by reason of its not having been refiled within the time prescribed by the statute. The statute provides that every mortgage or conveyance intended to operate as a mortgage of goods and chattels, which shall not be accompanied by immediate delivery, etc., shall be absolutely void as against the creators of the mortgagor and as against subsequent purchasers and mortgagees in good faith, unless the mortgage or a true copy thereof shah be filed as directed by the statute, and that every mortgage filed shah cease to be valid as against the creditors of the mortgagor or against subsequent purchasers or mortgagees in good faith, after the expiration of one year from the filing thereof, unless within thirty days next preceding the expiration of the year a true copy of the mortgage, together with a statement exhibiting the interest of the mortgagee in the property, shah be again filed. 3 R. S., [7th ed.], 2249.

It will thus be observed that the failure to refile the mortgage renders it void as to the creditors and subsequent purchasers or mortgagees in good faith. It is not void as to the mortgagor. As to him, the mortgage remains of full force and effect," even though it was never filed. Under the Code, a receiver, when appointed and qualified, is vested with the property of the judgment debtor from the time of filing the order appointing him, and where the appointment was made in proceedings supplementary to an execution, his title to personal property relates back to the time 'the special proceeding was instituted. The receiver becomes vested with all the rights and property of the judgment debtor. Pettibone v. Drakford, 37 Hun, 628.

In the case under consideration the receiver acquired the same interest in the mortgaged property that Brown had. He took the title as a trustee commissioned to dispose of it and pay the judgment creditor. The receiver was not a creditor and did not stand in the place of one. His rights and duties were entirely different. The plaintiff, was not bound to keep his mortgage filed as against the receiver any more than he was against the mortgagor, and inasmuch as the mortgage was valid as against the mortgagor, it was also valid as against the receiver. The debt of the mortgagor was past due. The plaintiff had the right at any time to take the mortgaged property into his possession, and no one but a creditor or subsequent purchaser or mortgagee in good faith had the right to interfere. Gardner v. Smith, 29 Barb., 68; Niagara County National Bank v. Lord, 33 Hun, 557, 564; Dubois v. Cassidy, 75 N. Y., 298; Tinkey v. Langdon, 13 Week. Dig., 384; Campbell v. Genet, 2 Hilton, 290.

We are aware that the case of Clark v. Gilbert (10 Daly, 316), is, in some respects, in conflict with the views as above expressed. The case, however, is distinguishable from the one under consideration, and it does not attempt to disprove of the doctrine promulgated in the case of Gardner v. Smith, supra, which we regarded as controlling in this case. The judgment creditor had the right to issue an execution and levy upon the oxen in question, and had he done so after the expiration of the year and before the mortgage had been refiled, his right to sell would have been unquestioned. Ely v. Carnley, 19 N. Y., 496; Fraser v. Gilbert, 11 Hun, 634; Steele v. Benham, 84 N. Y., 634.

But having failed to make such levy his remedy is gone. Ho claim of fraud is made on the part of the mortgagor and mortgagee, and consequently the case is not brought within the provisions of chapter 314, Laws of 1858.

The judgment of the county court°should be reversed and that of the justice court affirmed. So ordered.

Bradley and Angle, JJ., concur.  