Dutcher v. Swartwood

-Boardman, J.,

(dissenting):

Assuming (as pcrhaps’ive must in this cáse) that the1 plaintiff’s mortgage was fraudulent iii law as to creditors, it’was still possible for him to táke possession of the'mortgaged property, with the consent of'the- mortgagor, as a security-‘for his-debt;' and'such possession so taken lydujd he' valid and effectual -'as against creditors' át “large: This 'was precisely what was attempted. ' The learned judge submitted tiiat question of fact to-the jiiry, and the jufy has found that such' possession was taken by the plaintiff of this property, 'without'fraud-or fraudulent intent, before the cred*37jtors had obtained their judgments. The plaintiff,. then, as a creditor of defendant, had taken possession of certain -property .of defendant’s,, in good faith, as a pledge or security-for his. debtj •and the invalidity of the mortgage he before that, and then, held; would not destroy the effect' of this new act, which the-law peymits. An unfiled mortgage is void -as to the subsequent creditors ■at large of the mortgagor; -but it- clearly cannot impair a title obtained from the-mortgagor,- which overcomes the defect of; the neglect to file the mortgage. ,. ..- . .( ,- •

If the plaintiff had had no mortgage, good or bad, lie -could have taken possession of 'the,property, either, as a pledge for-or in payment. of his debt. ,. Possession, so taken, would, give him the preference over general creditors. It cannot be possible that the possession of a worthless-security puts,the plaintiff in, a worse position than'if he had none, t , .r

Entertaining these views, I think the case was properly disposed of at' the Circuit, -and that'the judgment-and- order should he affirmed, with costs. 'i'

• Judgment and order reversed; new trial granted, costs to abide 'event.' ' ■ 'J