There is evidence enough to warrant a finding tnat the. attorney who signed the transfer of the mortgage was authorized to do so by Mary L. Marvin. It was then sufficiently executed as by the representatives of the estate of Harriet Marvin. (Hertell v. Bogert, 9 Paige, 52.)
The referee finds that the chattel mortgage, executed in December, 1869, by Benjamin Y. Fraser, then owner of - the property, to Harriet Marvin, was never filed in the clerk’s office until April 1, 1814, when it was filed and immediately withdrawn; that the mortgagor remained in possession at least for one year; and that there was no immediate change of possession.
*636The sale by the mortgagee in the winter of 1870-1871, and the purchase by her of the mortgaged property did not change her rights. (Buffalo Steam Engine Works v. Sun Mutual Ins. Co., 17 N. Y., 403.) There is no evidence that the mortgagee then took possession of the property. It remained as it had been in the Everett House. Nor is there any evidence that after the death of the mortgagee in March, 1872, her representatives took possession of the property. In the spring of 1874, the transfer to the plaintiff was written upon the mortgage and was signed in the name of Mary L. Marvin by her attorney. It appears that after this transfer was made, the property still continued until the fall of 1874, in the Everett House, where the wife of the mortgagor was still carrying on the house and where the property (furniture) was still used the same as before.
The plaintiff testifies that in the spring of 1874, the mortgagor handed him the mortgage with the transfer written on it; that he went through the house to see the property was there; that he took the furniture and varnished it (the mortgagor buying and preparing the varnish); that he put the furniture in good condition and put it in the rooms of the Everett House and let his mother use it, who was then running the house; that he had always lived with his father and mother; that the Everett House was run the same as it had been for several years before, and the furniture used the same as it had been for years before.
In the fall of 1874, the plaintiff seems to have taken part of the personal property to the McNulty House; the bedding and crockery. AIL the bureaus, bedsteads, mattresses and carpets, were still left at the Everett House.
In June, 1872, Norman Sherman and others recovered judgment against Benjamin Y. Eraser, for a debt contracted by him between June and September, 1869. On that judgment they issued execution December 12, 1874, and the defendant, as deputy sheriff, seized and sold thereunder this personal property.
It seems to me plain that Mary L. Marvin never had any other interest in the property than as mortgagee. The alleged sale to herself gave her no additional title. (Buffalo Steam Engine Works v. Sun Mut., ut supra; Pulver v. Richardson, 3 N. Y. S. C. [T. & C.], 436.) The parties evidently treated the matter in this way and disregarded the alleged sale. The transfer to the plaintiff was on its *637face a transfer of the mortgage; not a bill of sale of the property described therein. There are, therefore, no third parties who have purchased the property in good faith under a sale thereof. The plaintiff succeeds only to the rights of Harriet Marvin, the original mortgagee.
The mortgage was not accompanied by an immediate delivery; nor was it followed by an actual or continued change of possession. As it was not filed, therefore, it was absolutely void as against the creditors of Benjamin V. Fraser. (2 R. S. [m. p.], 136, § 9.)
The judgment creditors were creditors of the mortgagor when the mortgage was executed. Under the decision in Thompson v. Van Vechten (27 N. Y., 568), they have a right to go bach to the origin of their debt and show that the mortgage was void as to them. This case is approved in Parshall v. Eggert (54 N. Y., 18). The plaintiff claims that the case of Van Heusen v. Radcliff (17 id., 583) is in conflict with this doctrine. That case only decides that a voluntary assignee in trust for creditors is not a purchaser, against whom a mortgage is void for want of filing. It decides nothing as to the rights of creditors.
The case of Tiffany v. Warren (37 Barb., 571), only holds that a second mortgage for a precedent debt is not a mortgage “ in good faith,” under the meaning of this statute. It decides nothing as to creditors by judgment and execution.
In the case of Hale v. Sweet (40 N. Y., 97), the language cited by the plaintiff was in a dissenting opinion. The decision is not in conflict with the doctrine above stated. And the same may be said of the decision in Porter v. Parmley (52 N. Y., 188), also cited by the plaintiff.
It does not affect the parties that the mortgage had become payable by its terms. “ Once a mortgage it so continues for the purpose of filing.” (Ely v. Carnly, 19 N. Y., 496).
We have then a case where the statute declares the mortgage to be absolutely void. "When a mortgage is given and not filed, and no delivery of the property is made, and at a subsequent time the property is delivered and there is then an actual and continued change of possession; and after such delivery the mortgagor becomes indebted, it is not necessary to inquire whether the mortgage may not be valid as against such indebtedness. But that is uot the present *638case. Here no immediate delivery was made and no change of possession was had. The mortgagor continued in possession, and it does not seem that any actual change of possession was made until the fall of 1814; if then.
Under 2 Revised Statutes (m. p., 136, §§ 5, 6), also, this mortgage is presumptively fraudulent and void. It was necessary for the plaintiff to show that the mortgage was made in good faith and without intent to defraud. How far the testimony established this need not now be examined.
There are some objections taken by the defendant to the evidence which should have been allowed. As there must be a new trial on other grounds, it is unnecessary to specify them.
The plaintiff claims another title to the piano. It appears that this was levied on for taxes, and it is claimed to have been bid off by the mortgagee at a sale by the collector. But the difficulty with this claim is that the only transfer to the plaintiff was of the mortgage. If there was a purchase by the mortgagee at the collector’s sale, which gave her a title other than as mortgagee, then that title was not transferred to the plaintiff by the’ indorsement on the mortgage. If, on the other hand, the payment by the mortgagee is to be considered as made only to protect her interest, and she is to be treated still as mortgagee of the piano, then the same objection remains, which was above stated, that the mortgage was not filed.
Judgment should be reversed and there should be a new trial, costs to abide event and reference discharged.