Smith v. Cooper

Barnard, P. J.:

The judge erred at the Circuit in holding, as matter of law, that the mortgage given by Caleb T. Smith, to the plaintiff, and filed March 11, 1878, ivas void and of no effect as to the defendant. It appeared from the evidence that on October 17, 1877, Caleb T. Smith executed a chattel mortgage to the plaintiff. This-mortgage was filed in the proper office March 11,1878. On March 11, 1879, Caleb T. Smith makes on this mortgage so filed, the following statement:

“ Smiti-itown, March 11, 1879.

“ This chattel mortgage is hereby renewed for one year from this date. As witness my hand and seal. CALEB T. SMITH. [l.s.J

“ Sworn to before me this 1 11th day of March, 1879. j

“ Jacob B. Conklin,

“Notary Public.”

The effect of this act by Caleb T. Smith was to create a new mortgage. It was in the power of the mortgagee alone to renew •.tbe old mortgage by making a statement within the thirty days next preceding the end of each year, after filing the mortgage, by ■filing a copy and making a statement of his, the mortgagee’s, interest in the property covered by the mortgage. The mortgage ■might also be kept alive by the mortgagor giving a new mortgage for the same debt and refiling it. This was the legal effect of what ■was done. By the concurrence and direction of the mortgagee, the -mortgagor re-executed the old mortgage and refiled it instead of making out a copy and executing it as a new mortgage, and refiling the same. The sheriff levied upon the property in question, after this re-executed mortgage was filed in March, 1879.

The judgment should, therefore, be set aside, and a new trial granted, costs to abide event.

Dtkman, J., concurred; Gilbert, J., not sitting.

Judgment and order denying a new trial reversed, and new trial granted, costs to abide event.