
    *Matthew Wilson, Jr. v. Benjamin F. Leslie.
    A mortgage of personal property under the statute of 1846 is “absolutely void” as to other creditors of the mortgagor who assert their rights against the property after its execution, and before it is deposited with the recorder or township clerk.
    Such a mortgage is not void in toto, by reason of an omission to make the deposit “ forthwith,” but becomes effective whenever it is deposited. And in case of a temporary withdrawal of the paper from the recorder’s office, the mortgagee will not be prejudiced by a levy made at the instance of another creditor.
    Error to the court of common pleas of Muskingum county.
    The action was replevin, brought by Wilson, the plaintiff below, who is also plaintiff in error, against Leslie, to recover the possession of the following goods and chattels: One carriage with leather extension top, trimmed with red plush; one carriage with standing top; one dapple gray mare, called Sarah Thompson; one light gray mare, called Betsey Baker; two sorrel mares matched.”
    The bill of exceptions is as follows:
    “Upon the trial of this cause, in the court of common pleas, the plaintiff gave in evidence a mortgage of chattels from John Clements to him, dated March 12, 1851, and deposited with the recorder of Muskingum county (his office being kept in the township where the mortgagor and mortgagee resided) March 20, 1851, a copy of which mortgage, with the indorsement by the recorder, is attached hereto, marked ‘A.’ The plaintiff also gave in evidence the notes mentioned in the said mortgage, copies of which are hereto annexed, marked ‘B;’ and gave evidence tending to show that the debts therein mentioned wore justly due to him. Ho also proved that about the hour of three p. m. of April 1, 1851, the defendant, as sheriff of said county, levied on the chattels mentioned in the declaration, by virtue of an execution then in his hands, in favor of Kennett, McKee & Co., and against said Clements, which, with interest and cost, amounted to the verdict ^afterward rendered herein. In the further progress of the cause, it was proved that on April 1, 1851, this court then being in session, about ten o’clock a. m. the plaintiff, without the knowledge or advice of the attorney hereinafter referred to, went to the recorder’s office, which is in an upper room of the west wing of the building in which the court sits, and asked for the mortgago, saying that he wanted an alteration made therein; that the recorder handed it to him, and the plaintiff took it to the court-i’oom to a lawyer who had before that time been his attorney in the matter of securing his debt from Clements, and told him that the ‘bay horse, Baldfaco,’ mentioned in the mortgage, had some disease which he thought might injure the others, and he had had him sold, and wished to have inserted in lieu thereof,, one bay mare, and he desired his advice whether such an alteration of the instrument might lawfully be made, with the assent of Clements, The attorney advised that it might be done, whereupon the plaintiff went to Clements, and the instrument was altered with the assent of the parties to it, by drawing a pen through tho words ‘bay horse, Baldface ’ and interlining in lieu thereof, the words ‘one bay mare.’ This alteration was made before tho levy, but the mortgage was not returned to the recorder’s office, until four p. m. of that day and after the levy. Neither tho bay horse, ‘Baldfaco,’ nor the bay mare, was levied upon.”
    It was further proved that on Saturday, March 30, 1851, the same attorney, having in his hands a warrant of attorney given by Clements to the said firm of Kennett, McKee & Co., made preparations by drawing all the necessary pleadings, to take judgment against said Clements the following Tuesday, being the first day of the then next, term of the court of common pleas for said county, and also to file a bill in chancery against the plaintiff and Clements, impeaching the mortgage for fraud, and praying, if held valid, the property might be sold, and the surplus, after satisfying Wilson’s debt applied to the claim of Kennett, McKee 
      & Go.; that for the purpose of preparing said bill in chancery, he went that ^Saturday to the recorder’s office and copied from said mortgage a list of the articles, and partially wrote his bill the following Tuesday morning, and on the same afternoon he concluded to insert the entire mortgage in his bill, and after his interview with the plaintiff in the court-house, went to the recorder’s office to copy said mortgage, and learned that the mortgage had not yet been returned; that he could as well have written his bill in chancery without seeing said mortgage again, as with it; that he then took his judgment, and deemed it his duty to issue execution in favor of said Kennett, McKee & Co., which he did, and which was levied as before set forth. It was also in evidence that the plaintiff knew before March 30, 1851, that the said attorney had said claim of Kennett, McKee & Co. against Clements in his hands for collection; and it was further proved that the said attorney intended, on Saturday, March 29, 1851, to enter up said judgment the following Tuesday, though he did not intend levying on the property in question, until he discovered that the mortgage had not been returned to the recorder’s office as above stated.
    It was further proved that the property mortgaged, and now in question, was not delivered to Wilson, but remained with Clements until the said levy was made.
    The court charged the jury, “first, that the mortgage was void because of the lapse of time between its execution and deposit with the recorder; and, second, that the levy made while the mortgage was temporarily out of the recorder’s office, would hold the property, notwithstanding notice to the attorney, unless the jury were satisfied that the attorney assented to its being out; and that they were to regard these instructions as governing the case, although they might be satisfied that the debts mentioned in the mortgage wei'e justly and fairly due from Clements to the plaintiff. To which opinions of the court the .plaintiff excepts, and prays the court to sign and seal this his bill of exceptions, and that it be made a part of -the record, which is accordingly done.”
    *The mortgage referred to reads as follows:
    “Know ail men by these presents, that I, John Clements, for and in consideration of the sum of $1,000, to me paid by Matthew Wilson, Jr., have bargained and sold, and do hereby sell and convey unto the said Matthew Wilson, Jr., the following described personal property, to wit: one (1) carriage, with leather extension top, trimmed with red plush; one (1) sulky; two (2) sleighs; one (1) carriage with standing top ; one (1) brown buggy with red. head lining; one (1) black buggy, trimmed with figured damask; three (3) buggies in course of construction; one (1) two-horse wagon; one (1) buggy-pole; one (1) double-seated buggy without top; two (2) pair extra shafts; one (1) dapple-gray mare (Sarah Thompson) ; one (1) light grey mare (Betsey Baker) • one gray horse (Gray Eagle); one (1) bay mare (Sarah McBride) ; one (1) bay pacing mare (Sarah Bladen) ; one (1) bay horse (Col. Morgan) ; one (1) black mare (Polly Hopkins); one (1) bay mare (Sarah Stiner) ; one (1) sorrel mare (Fanny Morgan) ; one (1) pair sorrel mares, matched; one (1) bay mare; twelve (12) sets of harness; two (2) buffalo robes; nine (9) horse-blankets; four (4) saddles; five (5) bridles; one (1) side-saddle.
    “ Provided always, and these presents are upon this express consideration, that whereas said John Clements is indebted to said Matthew Wilson, Jr., in the sum of $1,312, by three several promissory notes—one for the sum of $700, dated February 1.1849; one for the sum of $300, December Í, 1846; and one for the sum of $290, payable one day after date.
    “Now, therefore, when the said John .Clements shall pay said notes and the interest thereon, then this conveyance is to be void; until then to remain in full force and virtue.
    “ It is understood that said Wilson does not extend the time of .payment.
    *“ Witness my hand and seal, this 12th day of March, 1851.
    “John Clements, [seal.]
    “Attest: William Wilson.”
    The notes, copies of which are made exhibits to the bill of exceptions, are described in the foregoing mortgage.
    On the back of this instrument, the mortgage, is the following indorsement:
    “ Entered March 20, 1851, at 10|- o’clock.”
    The cause was tried to the jury, at the July term, 1851, of the court of common pleas for Muskingum county; and under charge of the judge, the jury returned a verdict for defendant, and assessed his damages at $215.56, for which judgment was entered.
    The writ of error is brought to reverse this judgment.
    
      Goddard & Eastman, for plaintiff in error,
    cited Sanger v. Eastwood, 19 Wend. 514.
    A. P. Blockson, for defendant,
    cited Smith v. Acker, 23 Wend. 653; Fitch v. Humphrey, 1 Denio, 163.
   Spalding, J.

The mortgage from Clements to Wilson was executed on March 12, 1851, and was deposited in the office of the recorder of the county on the 20th of the same month, a period of seven days having intervened.

The court below charged the jury that the mortgage was void, because of this lapse of time between the execution and deposit of the instrument. In this we think the coui’t erred. The statute of Ohio, of February 24, 1846, provides “that every mortgage or conveyance intended to operate as a mortgage of goods and chattels, hereafter made, which shall not be accompanied by an immediate delivery, and be followed by an actual and continued change of possession of the things mortgaged, shall be absolutely void, as against the creditors of the mortgagor, *and as against subsequent purchasers and mortgagees in good faith, unless the mortgage, or a true copy thereof, shall be forthwith deposited as directed in the succeeding section of this act.”

A fair construction of this statute will not make the instrument inoperative as botween the parties (mortgagor and mortgagee), although it be not forthwith deposited with the recorder. It will not be permitted to stand in the way of an execution issued at the-instance of a judgment credited', until after it shall have been deposited in the proper office. And in certain cases, undoubtedly, an. execution may hold the chattels mortgaged, even after the instrument has been placed on file in the office; as where the delay has been so great as to taint the transaction with fraud.

But the mere fact that the mortgagee omitted, for several days- or several weeks, to deposit his mortgage deed with the clerk of the township or recorder of the county, as the case might require, would by, no means render his security void. It would not be void as against the mortgagor, if not filed in the office at all. It would not be void as against that class of creditors who were equally remiss with the mortgagee, and took no steps to fasten upon the property for the payment of their debts. Until placed in the proper office, a mortgage of chattels, in our state, would be void as against other creditors of the mortgagor and subsequent purchasers and mortgagees, whose rights then attach. But when filed with the clerk or recorder, the instrument becomes valid and effective against all men except those whose rights have thus previously attached.

The court below charged the jury that the levy made while the mortgage was temporarily out of the recorder’s office, would hold the property, notwithstanding notice to the attorney, unless the jury were satisfied that the attorney assented to its being out. There is great and manifest error in this ruling of the court. The facts, as disclosed by the bill of exceptions, were as follows:

The attorney who had been consulted by Wilson, in the matter *of securing his debt by means of this mortgage, had in his hands for collection a claim in favor of Kennett, McKee & Co., against Clements, with a warrant of attorney to confess judgment.

On Tuesday, April 1, 1851, and on the first day of the term of the court of common pleas, at about ten o’clock a. m., Wilson took his mortgage from the office of the recorder, where it had been deposited since the 20th of March, to the court-room, in the same building, for the purpose of consulting this same attorney as to the propriety of striking out one of the horses mentioned in the instrument, which had become diseased, and inserting a certain bay mare in lieu thereof. The attorney advised that it might be done, with the assent of Clements, and while Wilson was absent procuring this amendment to be made, his legal adviser “ deemed it his duty” to take judgment in favor of Kennett, McKee & Co., and forthwith to take out execution, and have the same levied on a portion of the property which he knew was covered by the mortgage. At four o’clock in the afternoon, the mortgage was taken back to the office of the recorder, but “ it was too late.” The trap had been sprung.

To designate this as sharp practice on the part of the attornoy) will be treating his conduct with sufficient delicacy. To hold that a levy obtained through such instrumentality, should override a bona fide mortgage, would be preposterous. The court of common pleas ought not to sanction snch an abuse of its process.

The temporary withdrawal of the paper could not impair its force, if done with intent to return it. In contemplation of law, it was -“on file in the office,” although out of the recorder’s room. The assent of the attorney to its withdrawal was quite immaterial.

The judgment of the court of common pleas is reversed, with costs.  