Opinion
11-09-1904
MURRAY et al. v. ZELLER.
George M. Shipman, for complainants. W. H. Walters, for defendant.
Suit for injunction by Thomas S. Murray and others against Samuel Zeller. On bill, etc. Injunction granted.
George M. Shipman, for complainants.
W. H. Walters, for defendant.
BERGEN, V. C. On the 23d day of September, 1904, the complainants caused to be issued a writ of attachment against the goods and chattels of John H. Horner, founded upon a debt due from Horner to them for goods sold between May 12, 1904, and August 25th next following. By virtue of this writ the officer to whom it was directed attached the interest of Horner in certain goods and chattels then in the possession of the defendant, who holds and threatens to sell them. No question is made as to the validity of the attachment, or of its due execution, so as to bind the chattels, but the defendant claims a right to the goods, prior to the complainant, by virtue of a chattel mortgage thereon, made by Horner to the defendant, dated May 13, 1904, acknowledged the same day, and verified by the defendant May 16th. The complainants do not dispute the right of the defendant to take the chattels, as against Horner, but insist that for want of immediate possession thereof, or the prompt recording of the mortgage, the right of the defendant is postponed to the lien of their attachment. Between the date of the mortgage and September 15th, when complainants insist the mortgage was first recorded, the debt, upon which complainants' attachment is based, was contracted by Horner, and, if the mortgage was not recorded until September 15, 1904, more than five mouths after it was executed, the fact that it was recorded about a week prior to the issuing of the attachment will not give the mortgage priority over it, for the statute requires that immediate possession be taken, or, in default of it, the immediate recording of the mortgage. The withholding of this mortgage from record for so long a time, during which the complainants' debt was contracted, vests complainants with a right that cannot be swept away by recording the mortgage while he is perfecting his lien against the mortgaged goods. Roe v. Meding, 53 N. J. Eq. 350, 33 Atl. 394. Nor does the allegation in the answer of defendant that complainants' agent was told of the existence of the mortgage avail him, for such knowledge will not prevent a creditor from assailing the mortgage for want of compliance with the statute. Roe v. Meding, supra. The defendant, however, insists that he is entitled to priority because he was in possession of the goods under his mortgage nearly, if not quite, a week before the lien of the complainant attached to them, but this claim is determined adversely to defendant's insistment in the case last cited.
The real question to be determined is, was the mortgage recorded May 18, 1904, as insisted by the defendant? It is admitted that on May 16, 1904, the counsel of defendant mailed the mortgage to the county clerk for record, and shortly after received it from the clerk, with an indorsement thereon, signed by the clerk, which certified as follows: "Received in the clerk's office of the county of Warren, on the 18th day of May, A. D. 1904, at 10:30 o'clock in the forenoon, and recorded in Book —— of Chattel Mortgages for said county, on pages ——." It will be observed that the certificate does not give either the book or page of record, and is only the usual indorsement made by the clerk upon receipt of the paper to be recorded, to be completed with book and page when actually transcribed in the record book; and, if it had remained in the clerk's office until copied into the record, the indorsement and retention by the clerk would have been a sufficient compliance with the statute; but it is only notice when the clerk retains it for public inspection until actually recorded. Von Schuller v. Commercial Association, 63 N. J. Eq. 388, 51 Atl. 932. The situation is undoubtedly due to an error on the part ofthe clerk. How it happened does not appear, the clerk not having been sworn, or given any explanation of the matter, and no entry found in any of his records referring to this mortgage, or to any circumstance connected with it, showing that it had been left there for record, although a thorough search appears to have been made. The complainants on one or two occasions while the debt was being contracted applied to the clerk for the purpose of ascertaining whether Horner had given a chattel mortgage, and was assured each time that there was no record of any such mortgage. The counsel of the defendant did not notice, when the paper was returned to him, that the volume and page of the record was missing from the mortgage, and it was not until Horner had absconded, and another creditor had taken proceedings to collect his debt from these goods, that the want of actual transcribing was discovered; and on September 15, 1904, the paper was taken to the clerk's office and duly recorded. A clumsy attempt was made by the clerk to correct his error by first entering it in his register of daily entries under date of May 18, 1904. That was afterward erased, and September 15th written over it, for, as the attempted entry under the date of May 18th followed in regular order daily entries for June, July, and August, and part of September, the ruse was too patent to be persevered in by the person who made the entry. This effort to record in Slay, 1904, cannot take the place of the record required by law. To permit it, would be to sanction a dangerous innovation.
That the defendant suffers a hardship may awaken our sympathies, but cannot justify a plain disregard of the recording law. If the defendant has suffered from the negligence of the clerk, he may have a remedy therefor that I am not called upon to settle in this cause. A record, to have any value, must be such as gives notice of the contents of the instrument recorded. The indorsement of the clerk on an indenture returned by him to the owner is notice to no one but the holder, and in this case an examination by the defendant of the unfinished indorsement would have disclosed to him enough to put him on inquiry, and he is not wholly blameless.
My conclusion is that the lien of the complainants' attachment is prior to defendant's mortgage, and that he should be enjoined from making sale of the goods in satisfaction of his chattel mortgage, to the injury of the complainants, and I will so advise.