To be in writing.

Foreclosure.

Mortgage must be filed.

SECTION 1638. Renewal of filing.

1639, 1640. Duty of officers.

1641. Where mortgages on canal vessels must be filed.
1642. Duty of auditor upon filing.

1643. Certain errors to be disregarded.

1644. Negligence of officer.

1645. Copy, &c., when evidence.

1646. To what mortgages this article does not apply.

S 1632. A mortgage of personal property can be created, renewed, or extended, only by a writing subscribed by the mortgagor.

This provision is new. By the present law, a mortgage may be oral (Bank of Rochester v. Jones, 4 N. Y., 497; Flory v. Denny, 7 Exch., 581). But unless it is in writing, and filed, it is void against creditors and purchasers (Laws 1833, ch. 279); and as it is proposed by this Code to treat every mortgage of personal property, accompanied by a change of possession, as a pledge, there are obvious reasons for requiring mortgages, unaccompanied with such a change, to be in writing.

S1633. A mortgagee of personal property, when the debt for which it is given is due, may foreclose the mortgagor's right of redemption by a sale of the property, made in the manner and upon the notice. prescribed by the Title on PLEDGE, or by proceedings under the CODE OF CIVIL PROCEDURE.

See Patchin v. Pierce, 12 Wend., 63; Hart v. Ten Eyck, 2 Johns. Ch., 100, and cases cited. The reference is to the Code reported complete. Until sale or proceedings to foreclose, the mortgagor may redeem, although the law day has passed; as in case of a mortgage of land (Hinman v. Judson, 13 Barb., 629; Pratt v. Stiles, 17 How. Pr., 211; 9 Abb. Pr., 150). A sale of the property, after forfeiture, by the mortgagee, with the consent of the mortgagor, is equivalent to a formal foreclosure (Talman v. Smith, 39 Barb., 390).

S1634. A mortgage of personal property is void as against creditors of the mortgagor, and subsequent purchasers and incumbrancers of the property in good faith' and for value, unless it is filed as hereafter prescribed.

1 Laws 1833, ch. 279; 3 R. S. (5th ed.), 222; Gregory "
Thomas, 20 Wend., 17; Meech v. Patchin, 14 N. Y., 71.
Van Heusen v. Radcliff, 17 N. Y., 580; Thompson v.
Van Vechten, 27 id., 568, 581.

filing.

S1635. The filing of a mortgage of personal pro- Effect of perty, in conformity to the provisions of this article, operates as notice thereof to all subsequent purchasers and incumbrancers.

S1636. Except in the cases mentioned in section How fled. 1641, a mortgage of personal property is duly filed by depositing the original, or a copy:

1. In the office of the county register of deeds, if there is one, and his office is situated in the town wherein the mortgagor resides at the time of executing the mortgage, or, if he does not reside in the state, the town wherein the property mortgaged is at such time situated;

2. If there is no register's office so situated, then
in the county clerk's office, if it is so situated; or,
3. If neither office is so situated, then in the office
of the clerk of such town.

3 R. S. (5th ed.), 223; Laws 1833, ch. 279; as modified
by various laws establishing registers' offices in differ-
ent counties, as, for example, Laws 1852, p. 77.

S1637. A single mortgage of personal property, embracing several things of such character or so situated that, by the provisions of this article, separate mortgages upon them would be required to be filed in different places, is only valid in respect to the things as to which it is duly filed.

Thus a mortgage upon a canal boat and household fur-
niture if filed in the auditor's office only, will be good
as to the boat, but void as to the furniture. A mort-
gage by a non-resident upon property in different
counties, must be filed in each of those counties.

Mortgage in respect to which it

valid only

to things a

filing.

S 1638. A mortgage of personal property ceases to Renewal of be valid, as against creditors of the mortgagor, and subsequent purchasers or incumbrancers in good faith, after the expiration of one year from the filing thereof, unless, within thirty days next preceding the expiration of such term, a copy of the mortgage, and a statement of the amount of existing debt for which the mortgagee claims a lien, subscribed by

Duty of officers.

Id.

Where mortgages upon canal vessels must be filed.

him, are filed anew in the office of the clerk or register, in the town in which the mortgagor then resides, or, if he does not then reside in the state, in the same office in which the mortgage was originally filed,' or, in the case of mortgages upon canal boats, in the office of the auditor of the canal department. And, in like manner, the mortgage and statement of debt must be refiled from year to year, or it ceases to be valid,' as against the parties above mentioned.

1 Laws 1833, ch. 279; 3 R. S. (5th ed.), 223; slightly modified, so as to make the section more explicit. As to what is a sufficient refiling, see Beers v. Waterbury, 3 Bosw., 396. As to when it is necessary, Wiles v. Clapp, 41 Barb., 645.

Laws of 1864, ch. 412, § 3.

Nitchie v. Townsend, 2 Sandf., 299.

S1639. The officers mentioned in the last section must receive and file all such instruments as are offered to them under this article, and must keep the same in their offices for the inspection of the public. 3 R. S. (5th ed.), 223; Laws 1833, ch. 279.

$1640. Every officer with whom an instrument is filed, pursuant to this chapter, must indorse a number upon the same in regular order, together with the time of receiving the same, and must enter the name of every party thereto in a book kept for the purpose, alphabetically, placing mortgagors and mortgagees under a separate head, and stating in separate columns, opposite each name, the number indorsed on the instrument, the date thereof and of the filing, the amount secured thereby, and the time at which it is due.

Laws 1849, ch. 69.

S 1641. A mortgage of a canal boat, steam tug scow, or other craft, navigating the canals of this state, must be filed in the office of the auditor of the canal department.

Laws of 1864, ch. 412, § 1.

In regard to mortgages of canal boats it was enacted by
Laws of 1858, ch. 247, as follows: "Any person having

any lien or incumbrance on any canal boat, steam tug,
scow or other craft navigating the canals of this state,
by a chattel mortgage duly filed, may make a statement
in writing setting forth the nature of his claim, the
time when the same arose, the manner in which it
originated, and the amount of such lien or incumbrance;
and may annex thereto an affidavit made by himself
or his agent or attorney, that the said statement is
correct, and the claim just and true, and file the same
in the office of the auditor. It shall be the duty of
the said auditor, on the receipt of the said statement,
to file the same in his office, and to enter the substance
in a book to be provided for that purpose, and the
amount if any, claimed to be due, which book shall
always during office hours be open for the inspection
of all persons desiring to examine the same. All
claims and liens by chattel mortgage, a statement of
which shall be filed as herein provided, shall from the
time of such filing have preference and priority over
all other claims and liens, in the same manner and to
like extent of claims and liens arising on chattel mort-
gages filed and entered in towns where the mortgagor
resides, but shall not have any priority over existing
liens and claims."

This act has been disregarded by the commissioners, for

the reason that its construction in respect to the legal
effect attributable to filing in the auditor's office, is too
uncertain and obscure to render it a reliable guide in
the revision of the law (see Sweet v. Lawrence, 35
Barb., 337), and because the act of 1864, from which
the provisions in the text are taken, though professedly
an amendment to that of 1858, in effect supersedes it
by new and more distinct provisions, complete in them-
selves, without reference to the act amended.
Neither the act of 1858, nor that of 1864, contain pro-
visions dispensing with filing in the office of the register
of deeds, or county or town clerk. Obvious reasons,
however, suggest that if filing in the auditor's office is
required, filing elsewhere should be dispensed with.
The commissioners have framed the sections in the
text accordingly.

auditor

upon filing

1642. The auditor must cause every mortgage Duty of filed with him pursuant to the last section, upon receipt thereof, to be respectively numbered, the time of receiving the same to be indorsed thereon, and the substance thereof to be entered in a book provided for that purpose, entering alphabetically the names of all the parties to such instrument, with the number

Certain

errors to be disregarded.

Negligence of officer.

indorsed thereon opposite to each name; which entry shall be repeated in the index alphabetically under the name of every party thereto, also indexing the name of each boat mortgaged, with the number of the mortgage opposite to each.

Laws 1864, ch. 412, § 4.

S 1643. A mortgage is not to be deemed defectively filed, by reason of any errors in the copy filed, which do not tend to mislead a party interested to his prejudice.

This provision is new.

S 1644. The negligence of the officer with whom a mortgage is filed cannot prejudice the rights of the mortgagee.

Dodge v. Potter, 18 Barb., 193; Bishop v. Cook, 13 id,

126.

Copy, &c., when evidence.

To what mortgages

S1645. A copy of any instrument required to be filed under this article, when certified by the officer with whom it is filed, or his deputy, is presumptive evidence of such filing, in the manner and at the time stated in the official indorsement on such instrument. The original indorsement is also evidence to the same extent only.

3 R. S., (5th ed.), 223; Laws 1833, ch. 279; see also, Laws of 1864, ch. 412, § 6.

S1646. Sections 1634 to 1645 inclusive, do not

this article apply to any mortgage of a ship or part of a ship,

does not

apply.

which is required by act of congress to be filed or recorded in any other manner.

By act of congress of July 29, 1850 (9 U. S. Stat. at L., 440), it was provided "that no bill of sale, mortgage, hypothecation or conveyance of any vessel, or part of any vessel of the United States, shall be valid against any person (other than the grantor or mortgagor, his heirs and devisees, and persons having actual notice thereof), unless such bill of sale, mortgage, hypotheca tion or conveyance be recorded in the office of the collector of the customs where such vessel is registered or enrolled."