
    Nelson L. Button, Pl’ff, v. Rathbone, Sard & Co., Def’t.
    
      (Supreme Court, General Term,, Fifth Department,
    
    
      Filed January 23, 1891.)
    
    Chattel mortgage—Bora vide purchaser.
    Plaintiff received from one T. a chattel mortgage on certain stoves, which mortgage was given in good faith and without intent to defraud creditors, in consideration of a loan made by him.' Before the mortgage was filed T. gave a bill of sale of the stoves to defendant, who gave back an instrument in writing agreeing that on payment to it in twenty days of the sum of §1,000 it would reconvey the stoves to T. and satisfy his indebtedness tQ it. Held,, that the bill of sale and agreement constituted a chattel mortgage or security for the payment of such indebtedness; that as defendant parted with nothing on delivery of the property, but accepted it in pledge for the payment of a debt, it was not a Iona fide purchaser within the meaning of the statute, and that plaintiff’s mortgage being valid between the parties to it, was valid as against defendant.
    Motion by the defendant for a new trial on exceptions taken at the Monroe circuit, March, 1890, and ordered to be heard at the general term in the first instance.
    
      Arthur L. Andrews, for def’t; Wm. F. Cogswell, for pl’ff.
   Macomber, J.

The plaintiff, at the circuit, recovered a verdict for the value of certain merchandise, consisting of stoves, upon which a chattel mortgage had been given to him by the owner, one Francis Tully, Jr., for a loan of $1,200 made on the 28th day of March, 1884. Tags indicating the ownership of the property in the plaintiff were affixed to the several stoves so mortgaged ; but no actual possession of the property was delivered by the mortgagor to the mortgagee, nor was the mortgage itself filed until after the rights of the defendant accrued.

On the 13th day of June, 1884, Tully transferred and delivered to the defendant a portion of the property so mortgaged, and the defendant received such transfer in ignorance, and without any actual or constructive notice of such pre-existing mortgage.

The court of appeals (S. D.) in this case, 118 N. Y„ 666 ; 27 N. Y. State Rep., 938, held that, under the statute, the fraudulent character of the plaintiff’s mortgage was open to the defendant, and accordingly reversed the judgment of this court affirming a judgment entered on a former verdict of the jury at the circuit in favor of the plaintiff. That decision was placed upon the ground that the defendant, by acquiring possession of the property covered by the chattel' mortgage, without notice or knowledge of the plaintiff’s unfiled lien, was in a position to question its validity, Upon this sole ground the former judgment of this court was reversed. At the new trial, now under consideration, close attention appears to have been given to this decision, and the case was accordingly submitted to the jury under instructions that unless the mortgage to the plaintiff had been shown to have been given in good faith, and without any intent to defraud the creditors of Tully, or purchasers or mortgagees from him in good faith, the defendant should recover a verdict. The charge of the court was made in accordance with 2 R. S., 136, § 5. The verdict of the jury, therefore, in favor of. the plaintiff ujdou this issue removes one obstacle interposed by the defendant in the way of the plaintiff’s ultimate recovery. '

There is, however, still open to the defendant the contention that it was a purchaser or mortgagee in good faith under our statute of frauds, and that such purchase confers rights paramount to the plaintiff’s mortgage, which was not filed in pursuance of the statute. It is necessary, therefore, to inquire into the exact relation which the defendant bears to this property under the uncontested facts appearing in the case.

By the terms of the transfer signed by Tully, under which the defendant claims, a consideration of $968.65 is recited to sustain such transfer, the bill of items of such indebtedness being prefixed thereto. The paper is a bill of sale absolute in form. Had this instrument been the whole of the writings between the defendant and Tully, undoubtedly the defendant would be held to be the absolute owner of the property described as against all parties except the plaintiff. But simultaneous with the execution of that instrument the defendant in its turn, in consideration of the paper executed by Tully, agreed in writing that upon the payment to it by Tully of the sum of $1,000 in money within twenty days from the date thereof (both papers being dated on the 13th day of June, 1884), it would reconvey and transfer all of the property so turned out to it to any person whom Tully might designate, and would release and discharge all indebtedness which it held against Tully, and that in case of non-payment of such sum of $1,000 within the time mentioned the agreement made by the defendant should be void.

These two papers taken together constitute a chattel mortgage or a security in the hands of the defendant for the payment by Tully of the indebtedness owing by him. It matters not that the agreement is contained in two instruments, because the two papers must be construed together. The intention of the parties is to govern, and that intention is plainly read in the words to which the several parties have subscribed. Smith v. Beattie, 31 N. Y., 542.

The situation, therefore, of the plaintiff and defendant is this: The plaintiff is a mortgagee in good faith of the personal property involved, having advanced the full value thereof at the time of receiving his security; the defendant in ignorance of such preexisting chattel mortgage receives the property from the debtor, without notice, to be applied in the manner above stated to the extinguishment, in whole or in part, as subsequent steps might determine, of the indebtedness to it.

Under these circumstances the plaintiff’s mortgage, being valid as between the parties thereto, must in pursuance of the verdict be deemed to be valid also as against the defendant, unless the latter is a purchaser or mortgagee in good faith, within the meaning of the statute. 2 B. S., 136, § 5.

When the act respecting the filing of chattel mortgages was passed, the term, “ bona fide purchaser ” had acquired a settled meaning which did not include a person whose purchase was on account of an existing debt, and who parted with no property or right to obtain his conveyance. Van Heusen v. Radcliff, 17 N. Y., 580.

The precedent debt owing to the defendant by Tully did not make the defendant the purchaser or mortgagee in good faith. Thompson v. Van Vechten, 27 N. Y., 568.

For a collation of the authorities upon the subject in general, reference may be made to the case of Phœnix Ins. Co. v. Church, 81 N. Y., 218, showing in what cases the surrender by the creditor of the debtor’s own obligation may or may not be regarded as a parting with value.

But under the facts disclosed in the record before us there is no room for a discussion of the refinements of the rule pertaining to the subject; for it is conclusively established by .the writings already referred to, executed between the defendant and Tully, that the defendant on the delivery of the property to it surrendered no rights and parted with no obligation of its own or of any other person, but accepted the delivery of such property as a creditor, in pledge for the payment of a debt, with the privilege to the debtor to reclaim its possession on payment of a certain sum. This appears in the instrument signed by Tully by which it is stated that the transfer was made “ for value received and the credit of $968.65 to me upon the account due from me to Bathbone, Sard & Co.”- The amount so stated was the actual appraised value of the property so turned out to the creditor. Bathbone, Sard & Co., in an instrument signed by its agent, agreed as follows: “Now, in consideration of the premises and for value received, the said Bathbone, Sard & Co. do hereby promise and agree that upon the payment to them by said Tully of the sum of one thousand dollars in money within twenty days from the date hereof, they will reconvey and transfer all said goods specified in said bill to whom said Tully may designate, and also release and discharge all indebtedness which they so hold against said Tully; but in case of the non-payment of the said sum of one thousand dollars within said time this obligation to become void.”

There is nothing in the appeal papers to vary in any respect the conclusive character of these two instruments. The defendant gave up nothing in consideration of the receipt of the property. It merely placed to the credit of Tully the amount of the valuation of the property; but this even was provisional only, for at the same time it was agreed that the property should be redelivered to Tully in case of payment of a sum substantially the same as the valuation which was made at the time mentioned. It appears to us that such evidence removes this case from the category of those where it can be reasonably contended that the party claiming against an unfiled chattel mortgage may prevail upon showing a giving up of any valuable thing. The defendant parted with nothing.

The motion for a new trial should be denied, with costs, and judgment directed for the plaintiff upon the verdict.

Dwight, P. J., and Corlett, J., concur.  