
    (First Circuit — Hamilton Co., O., Circuit Court
    Jan. Term, 1896.)
    Before Swing, Cox and Smith, JJ.
    IN RE ASSIGNMENT OF P. WILSON’S SONS & COMPANY.
    
      Failure to renew prior chattel mortgage does not invalidate the same as against junior mortgagee with notice.
    
    Under the rule of Day v. Munson, 14 Ohio St. 488, where one receives a chattel mortgage, with notice of a prior chattel mortgage, valid at the time, which, however, afterwards becomes invalid, as against the mortgagor’s assignee for benefit of creditors and general creditors, for failure of statutory renewal, yet sucü senior mortgagee would be entitled as against the junior mortgagee, to payment out of the property sold to satisfy such junior mortgage, before such junior mortgage could be paid, if there was enough to do this. But where both the senior - and junior mortgages have become invalid as against the assignee and creditors for failure of renewal, both mortgagees will only be entitled to the pro rata dividend from the insolvent estate like ail other creditors.
    Appeal from the Court of Common Pleas of Hamilton County.
    Edward Besuden held two chattel mortgages, aggregating $30,000, on the assigned plant. A subsequent chattel mortgage for $25,000, upon the sarne property, was executed to Henry Besuden, he having full knowledge of the prior mortgages. . These several mortgages were all duly filed with the county recorder, but were, all rendered void by failure to file them in jMillcreek township where one of the partners of P. Wilson’s Sons &• Company resided. The order of the common pleas was, that Henry Besuden be paid part of the fund arising from the sale of the plant, as a general creditor.
    
      Rogers & Wright, for plaintiff in error.
    
      Roellcer & Jellce, contra.
   Smith, J.

■ We are of the opinion that the judgment of the court of common pleas in this case should be affirmed, If the chattel mortgage of Henry Besuden, which was taken out after those of Edward Besuden, and with actual knowledge and notice thereof, had been a valid one against the assignee and creditors of Wilson’s Sons & Company, and he had therefore a valid lien on the property assigned, and was entitled to have it paid in whole or in part from the estate, then Edward Besuden, whose mortgages as against ITenry Besuden were good, under the adjudications of our court, would have been entitled to receive from , the amount payable to Henry Besuden a sum sufficient to pay his mortgage claim, if there was enough to do this, though as to the assignee and the creditors the mortgages of Edward Besuden were utterly invalid. But in this case, not only were the mortgages of Edward Besuden void as to the assignee and creditors, but the same was the case as to that of Henry Besuden, the provisions of the statutes as to their filing not having been complied with. Neither of them, therefore, took anything whatever from the estate by virtue of the mortgage or mortgages held by him, and the principle referred to has therefore no application whatever to this case. But each of them, as a general creditor, had a vested claim against the assignors, and as such, was entitled to a dividend on his claim. But it seems to us that neither the law, justice or equity would allow Edward Besuden, under the circumstances of this case, as- is claimed for him to take the dividend that would otherwise' be payable to Henry Besuden as a general creditor, on his claim against the estate.  