
    Robbins M. Witherbee, Respondent, v. Andrew J. Taft, Appellant.
    
      Canal boat — a mortgage thereon not filed in the State Comptroller's ofike is subordinate to a subsequent transfer thereof not filed — when the mortgagee may avail himself of the-failure to file the transfer — it need not be filed in the collector of customs’ office.
    
    Where a chattel mortgage upon the mortgagor’s contract interest in a canal boat is filed in the town clerk’s office of the town in which the mortgagor resides, butbbot in the office of the State .Comptroller, the mortgagee’s title is, under chapter 412 of the Laws of 1864, and chapter 69 of the Laws of 1883, subordinate to that of a person who, without knowledge of the existence of the mortgage, advances money to the mortgagor upon the faith of an assignment of the latter’s interest in the boat, and of a bill of sale thereof which had been delivered to the mortgagor, notwithstanding the fact that the bill of sale and the assignment were not filed as a chattel mortgage.
    In such a case the mortgagee must obtain a judgment and issue an execution against the mortgagor before he can assert that the failure to file the assignment rendered it void as against him in his capacity as a creditor of the mortgagor.
    
      It seems, that a canal boat is nota “ vessel of the United States,” within the meaning of sections 4131 and 4311 of the United States Revised Statutes, and that a transfer thereof need not be filed under section 4192 thereof in the office of the collector of customs.
    Appeal by the defendant, Andrew J. Taft, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Washington on the 5th day of September, 1899, upon the decision of the court, rendered after a trial at the Montgomery Special Term, awarding to the plaintiff the possession of the canal boat Andrew J. Taft»and damages for its detention.
    
      
      O. A, Dennis, for the appellant.
    
      J. Sanford Potter, for the respondent.
   Merwin, J.:

■ The canal boat in question was built in 1881, and on November 10, 1881, the builders contracted to sell it to Sewell J. Sweet.- On November 13,-1881, Sweet took possession and ran it until the fall of 1895. On the-24th of August, 1887, Sweet executed and delivered to the defendant a chattel mortgage upon his interest in the boat to secure the payment to the defendant of the sum of $671.75, the amount then due and unpaid from Sweet to the defendant for money loaned and applied toward the payment of the purchase price of the boat; This mortgage and the renewals thereof were filed in the town clerk’s office of the town where Sweet resided but not elsewhere.

On or about January 9,1892, Sweet borrowed of one A. M. Bristol the sum of $700, giving therefor two notes of $350, each bearing date January 9, 1892. This money was used to pay the balance due on the purchase money of the boat and the-vendors thereupon gave to Sweet a bill of sale'thereof. This bears date January 11, 1892. Sweet as security for the loan executed to Bristol an assignment. of all his interest in the bill of sale. This assignment bears date January. 9, 1892, and authorizes Bristol to demand and receive the bill of sale, and provides that the assignment shall be attached to such bill of sale. Evidently the loan, the bill of sale and its transfer to Bristol are to be construed as one transaction. ■

In the spring of 1893, one of the notes to Bristol having become due and not being paid, Bristol applied to Sweet for the payment of both notes. Thereupon Sweet applied to plaintiff for a loan to take them up. Then, as the trial court finds, the plaintiff loaned and advanced $757 to Sweet, being the amount of the notes, and the notes were duly assigned and transferred to plaintiff and the bill of. sale from the vendors to.Sweet of January 11, 1892, was duly assigned and transferred to the plaintiff as security therefor. The proof is that- the plaintiff at Sweet’s request advanced the money directly to Bristol and received from him a transfer of the notes and of-the bill of sale and its transfer to Bristol. This was by the procurement of Sweet and evidently the loan was made by plaintiff in reliance upon the security of the title. The loan by plaintiff has not been paid and was past due when this action was commenced in June, 1896.

The defendant’s mortgage was not paid, and in the spring of 1896 he took possession of the boat. Soon thereafter, and before the commencement of this suit, the plaintiff, as the court finds on sufficient evidence, demanded possession of the.boat, but the defendant refused to surrender it. Neither the bill of sale to Sweet, nor the transfers thereof to Bristol, and to plaintiff, above referred to, were filed in the custom house or Comptroller’s' office prior to the time the defendant obtained possession of the boat.

The mortgage to defendant, not having been filed in the office of • the Comptroller, was, under the State Law (Chap. 412, Laws of 1864 ; chap. 69, Laws of 1883), void as against creditors of the mortgagor and subsequent purchasers.and mortgagees in good faith. The plaintiff is in effect a subsequent mortgagee. He holds as security for his advances the title of the boat such as was transferred from Sweet to Bristol, and by the latter, at Sweet’s request, to the plaintiff. There are no intervening rights between the time of the transfer to Bristol and his transfer to plaintiff.

■ It is found by the court that the plaintiff at the time he-advanced his money and took the transfer had no notice or knowledge of defendant’s mortgage. The defendant claims that this finding is not sustained by the evidence. An examination of the evidence on that subject leads us to the conclusion that the finding of the court should not be disturbed. If it be considered that plaintiff takes the position oh this subject of Bristol, the result is not changed. It • appears, that Bristol advanced the money at the time he took the security. It was for the balance of the purchase money of the boat and up to that time the legal title was not in Sweet. The moment it vested in him the transfer to Bristol took effect. There is no proof that Bristol knew anything about the mortgage to defendant. In the absence of such proof, the facts clearly warrant the finding that Bristol was a mortgagee in good faith.

The fact .that the transfers to Bristol and to plaintiff were not filed as chattel mortgages in the proper office does not deprive them of the protection of the statute. The priority of the subsequent mortgage is not' made to depend on whether it is ever filed. (De Courcey v. Collins, 21 N. J. Eq. 357; Jones Chat. Mort. [4th ed.] § 246.) The defendant, ■ before he obtained possession, had . notice of plaintiff’s mortgage.

It is argued upon the part of the defendant that if his mortgage is not available against the plaintiff’s claim, still he is a creditor of the mortgagor, and that, therefore, the plaintiff’s mortgage, not being properly filed, is not enforcible against him. The defendant, however, not having a judgment and execution is not in a position to enforce such a right. (Jones v. Graham, 77 N. Y. 628 ; Button v. Rathbone, Sard & Co., 43 Hun, 147; Kitchen v. Lowery, 127 N. Y. 59, 60.) The defendant claims that by direction of Sweet he toolc possession of the boat in payment of his claim. Ho defense of this kind .is set up. Hor would that fact relieve the defendant.from the necessity of having a judgment and execution before he could assert his right as a creditor. That was so held in the Button Gase (supra). Besides the evidence warrants the conclusion that the defendant took possession under his mortgage.

It would, therefore, seem to follow that the trial court correctly held that- the claim of the'plaintiff to the possession of the boat was superior to that of the defendant, unless the failure of Bristol and of the plaintiff to file their transfers in the office of the collector of customs under the provisions of the Federal statute (U. S. R. S. § 4192) calls for a different conclusion. Upon this subject, we assume, as claimed by the defendant, that under the evidence the boat is not to be deemed a “ vessel of the United States ” within ■the meaning of the law(U. S. R. S. §§ 4131, 4311; Best v. Staple, 61 N. Y. 71), and that, therefore, the provision as to filing in the collector’s office is not applicable...

We have examined the other questions presented by the defendant, but we find no good ground for reversal. There was no dispute about the value of the boat. The evidence was sufficient to justify the finding.as to the damages for detention.

All concurred.

Judgment affirmed; with costs.  