It was conceded upon the argument that the referee erred, in admitting Tweed and Mason as witnesses for the defendant, within the recent decision óf. the Court of Appeals. Tweed and Mason being the indemnitors to the -sheriff, the suit was defended for their immediate benefit.
A question arises in this'case as to the refiling of a copy of one of the mortgages on the goods in question, which we were requested in the arguement to decide. The copy of the mortgage was duly filed and the statement was duly endorsed thereon, excepting that an error was made both, in the copy and in the statement, in stating the amount secured by the mortgage and the amount due thereon to be one hundred dollars more than it was. It was shown that such error was the mistake of the copyist, and was innocent and without fraudulent intent, and the referee so found.
The objection to the admission of the evidence to show that the mistake was that of the copyist, was, I think, unavailing. As between the mortgagee and the sheriff-on a question of fraudulent intent, such testimony is admissible. (Fuller v. Acker, 1 Hill 473.)
There is more difficulty however in regard to the sufficiency of the copy filed with the register and of the statement as to the amount due.
The statute is positive in requiring a true copy to be filed within thirty days pending the expiration of one year from the filing of it, with a statement exhibiting the interest of the mortgagees in the property claimed therein, and in default thereof declares that such mortgage shall -cease to be valid against creditors. The validity of the mortgage does not depend upon any fraudu*503lent intent but upon the act of filing a true copy with the' statement annexed thereto. (Thompson v. Blanchard, 4 Coms. 303.)
If an erroneous copy can be received as sufficient, then the whole force of the statute is destroyed, because it makes the validity of the mortgage to depend not on filing the true copy, but on the proof that no fraud was intended or harm done. The very evil which the statute was intended to prevent would be furthered if the filing of a mortgage for a greater sum than was really due could be deemed a compliance with its provisions.
A question somewhat similar in the principles governing it was decided in this court in May term, 1845, Larbeg v. Soule and others. In that case a duplicate original mortgage was: filed as a copy at the expiration of the year without the statement of the mortgagee’s interest. It appeared to me in that case that there was another ground upon which the case should have been decided, which would render such error immaterial.. If the mortgage had became" due and payment had not been-made by the mortgagor, his interest in the property mortgaged had terminated and the title had vested in the mortgagee. There Vas no equity of redemption remaining on which the sheriff could levy, and if no title was in the mortgagor, filing of the copy was unnecessary. In other words, that it is only necessary to file a copy of the mortgage while the forfeiture by. new payment has not taken place. That the interest of the mortgagor is not subject to a levy after the forfeiture is held-in 8 Johns. R. 96, and distinctly recognized as law by SenatorVerplanck in Smith v. Acker, 23 Wend. R. 668. See Bailey v. Burton, 8 Wend. 339. And in Dane v. Mallory, 16 Barb. S. C. R. p. 50, it is also said that the mortgagee has an absolute interest, in the thing mortgaged, and that it can be levied on and sold as his property. If the copy of the mortgage must be filed an-, nually to confirm the title of the mortgagee, after his title has become perfect by forfeiture, it would be necessary to continue such filing annually after sale to confirm the title of a purchaser under it. In the case in this court above referred to, my breth*504ren differed with me on this question, and held that the mortgage was not valid although after forfeiture, for want of a proper statement being filed at the time of the second filing.
It does not appear whether the mortgage in this case was due or not before the execution was issued, and these remarks may not be applicable to it. I have referred to this case in order that the former adjudication of this court on the question may be known to the parties.