On a more careful examination than I gave to the case when it was before the Supreme Court, I am satisfied that the judgment of that Court is erroneous. The mortgage was filed in the town of De Ruyter, where the Justice and the Jurors lived, and where the trial was had; and it does not appear that any objection was made on the trial that the mortgage had not been filed in the proper town, or that there was any defect of proof on that point. It was evidently assumed throughout the trial that De Ruyter was the town where the Mortgagor resided; and the case was litigated upon other grounds. I am of opinion, therefore, that the judgment of the Supreme Court should be reversed; and that the judgment of the Common Pleas should be affirmed.
GARDINER, RUGGLES, and JONES, Js., concurred.
JEWETT, CH. J. and GRAY, J. delivered opinions for affirmance, with whom JOHNSON, J. concurred.
Judgment of the Supreme Court reversed, and that of the Justice and Common Pleas affirmed. *Page 96