
    Fuller vs. Acker.
    After default in payment of a chattel mortgage, the mortgagee’s title to the property becomes absolute at law, and he is entitled to the possession immediately. Hence, he may maintain replevin in the cepit against one who tortiously takes it from the mortgagor.
    Nor can it vary the case though, subsequent to the default, the mortgagee filed a copy of the mortgage and a statement, pursuant to the act of April 29th, 1833; for that will not operate an extension of credit, or give the mortgagor any additional right of possession.
    Though it be proved that the mortgagor of a chattel continued in possession, yet if the mortgage was given to secure a true debt, and the jury have negatived the allegation that it was made to defraud creditors, &c. this court cannot set aside their verdict as against the weight of evidence.
    A mortgage dated in 1837, appointing a day in 1830 for payment, is in legal effect payable immediately ; and, as between the parties, oral evidence is inadmissible to vary its operation.
    Otherwise, as between the mortgagee and a judgment creditor assailing the mortgage as fraudulent. "The former, for the purpose of repelling the fraud, may show the day of payment intended, and that the error occurred through inadvertence or mistake of the draftsman.
    Replevin, tried at the New-York circuit, March 23d,1841, before Gridley, C. Judge. The action was brought for wrongfully taking, &c. certain household furniture, to which the plaintiff claimed title under a mortgage to him from William Wagstaff. The mortgage was dated March 11th, 1837, and purported to have been given to secure the payment of a debt of $872,66, by “ the tenth day of March, one thousand eight hundred and thirty.” The original was filed on the day of its date, and copies filed with statements for three successive years afterward. The mortgage contained the usual provision, that the mortgagee might sell in default of payment, &c.
    The defendant, who was sheriff of the county of New-York, having on the 11th of May, 1838, received a fi. fa. against Wagstaff, seized the property in question by virtue thereof on some day afterward and previous to the first Monday in June succeeding;«from whom the plaintiff took it by his writ of replevin. It appeared that the fi. 
      
      fa. was duly issued on a valid judgment, and that the property was seized by the sheriff while in Wagstaff’s possession.
    The only witness called by the plaintiff on the trial was Wagstaff, the mortgagor. He testified, that the mortgage was given for a loan made to him by the mortgagee, on the day of its date; that the loan was for the exact amount named in the mortgage; that a part of the loan had been since paid, and the amount remaining due was $400; that when he gave the mortgage, he believed himself worth $120,000, but had no unincumbered property except what was included in the mort-gage ; that the mortgagee resided at Skaneatelas; "that the property mortgaged was worth, in his (Wagstaff’s) opinion, considerably less than the amount of'the sum loaned; that he (Wag-staff) had always remained^ in possession of the property, using it in his family, until within a year past; that he communicated the fact of the levy to the mortgagee soon after it was made, and told the sheriff of the mortgage when he levied, &c.
    This witness was allowed to-testify, that, in drawing-the mortgage, an error was committed in respect to the, time of payment; that the time agreed upon and intended was, March 10th, 1838, and that the word “ eight” was inadvertent-1 ly omitted. To the ruling of the circuit judge admitting this i evidence, the defendant’s counsel excepted.
    The above facts appearing, the plaintiff rested; whereupon the defendant’s counsel moved for a nonsuit, on the ground: 1. That the form of action, being in the cepit, was wrong; 2. That the mortgage was fraudulent as against the mortgagor’s creditors; 3. That the filing of copies of the mortgage with a statement pursuant to the act of April 29th, 1833, operated an extension of the time * of payment, thus giving Wagstaff the right of possession;-and, therefore, the sheriff was not a trespasser. The motion was -overruled, and the defendant again excepted.
    The circuit judge submitted the question of fraud to the jury, who found for the plaintiff1; and the defendant now moved for a new trial upon a bill of exceptions.
    
      
      N. B. Blunt, for the defendant
    
      A. Benedict, for the plaintiff.
   By the Court, Cowen, J.

By the mortgage and default in payment, the plaintiff became absolute owner at law, however he might be viewed in equity. He was entitled to take possession at any time from the mortgagor, who then became a mere naked bailee. Nor did the filing of a copy of the mortgage and a statement, pursuant to the act of April 29th, 1833, admitting that it took place anterior to the seizure, work an extension of credit. The object in such cases is to hold the property as against creditors under the original stipulations in the mortgage, and for this purpose alone is it required by the statute. There is nothing in it at all incompatible with insisting on immediate payment, or the effect of the forfeiture.

The mortgage was clearly fraudulent within the repeated decisions of this court; and under our own rule, and perhaps the rule of England, and every state in the union except this, it would’be our duty to pronounce it so, and order a new trial as against the weight of evidence. There was, however, some evidence of a good consideration; and since the decision of the court for the correction of errors in Smith & Hoe v. Acker, (23 Wend. 653,) we have held, and must continue to hold, that the jury have a right, in their discretion, to excuse possession in the mortgagor; and that we cannot interfere, as we may do when they decide against the weight of evidence on a question of fact in other cases.

It is also insisted, that the learned judge erred in allowing oral evidence to show the, time when the parties intended that the mortgage should be payable. An impossible time for payment was mentioned—1830, in a mortgage dated in 1837. This, in legal effect, was the same as if no time had been specified, and the money was therefore payable immediately. (Thompson v. Ketcham, 8 John. R. 189.) You can no more contradict the legal effeet of a written contract by oral evidence, than its express provisions. As between the parties to the mortgage, therefore, the oral evidence would not have been admissible. This was held in Thompson v. Ketcham. But that is not quite so clear as between the mortgagee and the sheriff, on the question of fraud. That the parties intended the debt should be payable immediately, would have added color to the fraudulent intent inferrible from a want óf change in the possession. This was in a degree tepelled, [though, I admit, it was a small circumstance,) by showing the mistake of the draftsman. On questions of fraud like this, which is inter alios, the objection of an estoppel does not apply, as it would if the litigation were between the immediate parties.

On the whole, therefore, I am of opinion that the motion for a new trial should be denied.

New trial denied. 
      
       See Johns v. Church, (12 Pick. 557, 560, 1;) Henderson v. Dodd, (1 Bail. Eq. Rep. (So. Car.) 138, 9, per Evans, J.;) Champion v. Butler, (18 John. R. 169 ;) Tripp v. Hathaway, (15 Pick. 47.)
     