By the Court.
J. M. Parker, J.The only question brought by the appeal to this court is, whether the mortgage is void upon its face.
The mortgaging the whole stock in trade — the whole concern forming the grocery and liquor store of the mortgagor— with the increase and decrease thereof, and the providing for the continued possession of the mortgagor, can have no other meaning than that the mortgagee should all the time retain a lien on the whole stock, by way of mortgage, the mortgagor making purchases from time to time and selling off in the ordinary manner, the intent being not to create an absolute lien upon any property, but a fluctuating one, which should open to release that which should be sold, and take in what should be newly purchased. This is such an arrangement as was held in Edgell v. Hart, 9 N. Y. 213, to render the mortgage void. The case cannot be distinguished from that, and the law as pronounced in that case must be held applicable to this.
True, in this case, the horse, wagon and harness in question did not constitute part of the stock in trade, which was the subject of the “ increase and decrease ” spoken of, yet if, as to the stock in trade, the mortgage was fraudulent as against creditors, that fraud infected the whole mortgage, and it is wholly void. Goodrich v. Downs, 6 Hill, 438; Mackie v. Carnes, 5 Cow. 547, 580; Grover v. Wakeman, 11 Wend. 187, 225.
I am of the opinion, therefore, that the judgment appealed from should be affirmed.
All the judges concurred.
Judgment affirmed, with costs.