ERRATUM. In the case of Compton v. Railway Co., page 625, fourth line from top, the word cut should be put; the correct reading being, "which may be put in process of administration," etc. Cooper v. Koppes. by the opinion of the majority of the court in this case, practipally makes every consolidation an assignment by each constituent company for the benefit of its creditors, which may be Peut in process of administration by any creditor at any time, and virtually defeats the purpose of the statute. 1 COOPER v. KOPPES. Chattel mortgages-Re-filing-Rev. Stats., sec. 4155. 1. A chattel mortgage which is not re-verified and re-filed within thirty days next preceding the expiration of one year from the filing thereof, in suance of section 4155 of the Revised Statutes, is void as against creditors and bona fide purchasers and mortgagees nor is it revived as to them by being re-verified and re-filed after the expiration of one year from the former filing. 2. Such a mortgage, so re-filed four days after the expiration of the one year, creates no lien upon the mortgaged property as against a levy in favor of an execution creditor made after such re-filing. (Decided March 13, 1888.) ERROR to the Circuit Court of Huron County. On June 28, 1879, Charles Saunders and others duly executed and delivered a chattel mortgage on certain personal property to C. & G. Cooper & Co., to secure a certain indebtedness therein described. On July 4, 1879, the mortgage, duly verified, was filed in the office of the clerk of the proper township. With the purpose of continuing the security, this mortgage was re-filed on July 8, 1880-more than one year from the original filing. The mortgaged property remaining in the possession of the mortgagors, a part of it was, on March 7, 1881, seized by virtue of an execution issued in favor of Koppes & Brenneman, judgment creditors of the mortgagors. On March 21, 1881, an additional levy was made upon the same property for the satisfaction of another judgment in VOL. 45-40 Cooper v. Koppes. favor of the same judgment creditors. On April 1, 1881, C. & G. Cooper & Co., brought replevin in the court of common pleas, based upon their claim as mortgagees, for the property so levied upon, and by the proper proceedings obtained possession of it. Upon the trial of this action, the court of common pleas found that Cooper & Co., by virtue of their chattel mortgage, were entitled to the immediate possession of the property, and adjudged accordingly. Error was prosecuted to this judgment by Koppes & Brenneman in the circuit court, which reversed the common pleas-finding that the latter court erred in adjudging the chattel mortgage to have been a valid lien upon the property as against the execution creditors, at the time of the respective levies thereon. To reverse this judgment the present proceeding is prosecuted. Upon this question alone the case is reported. A. R. McIntire, for plaintiffs in error. OWEN, C. J. If the lien of the Cooper mortgage was kept alive or revived as against creditors by the act of re-filing it after the expiration of one year from the original filing, the judgment of the circuit court should be reversed. The Revised Statutes-sections 4150, 4151, 4154-provide for verifying and filing chattel mortgages. Section 4155 provides that every mortgage so filed shall be void as against the creditors of the person making the same or against subsequent purchasers or mortgagees in good faith, after the expiration of one year from the filing thereof, unless within thirty days next preceding the expiration of said term of one year, a true copy of such mortgage, together with a statement verified, as provided in the last section, together with a statement exhibiting the interest of the mortgagee in the property at the time last aforesaid, claimed by virtue of such mortgage, is again filed in the office where the original as filed. The question at bar has not heretofore been expressly ad Cooper v. Koppes. * judicated by this court. It rests upon a construction of this statute; if, indeed, there is any room left us for construction. The provision that: "Every mortgage so filed shall be void as against the creditors of the person making the same, * * after the expiration of one year from the filing thereof, unless within thirty days next pereceding the expiration of the said term of one year, a true copy of such mortgage, * * * is again filed in the office where the original was filed," would seem to leave the courts no avenue of escape from its plain import except through a mere arbitrary judicial repeal. The contention is, however, that the re-filing of a chattel mortgage after the expiration of a year from the first filing is equivalent to the filing of a new mortgage, or the original filing of the mortgage, and if done in good faith, is good as against all subsequent liens. Swift v. Hart, 12 Barb. 531, and Herrick v. King, 19 N. J. Eq. 80, are relied upon to support this proposition. In the former case, construing a New York statute substantially like our own, the court say: "The refiling of a chattel mortgage after the expiration of a year from the time of first filing it is effectual to protect the mortgagee and his assigns as against an execution creditor whose execution is not levied until after the second filing, but is levied within a year from and after that time. Such second filing of a mortgage may be regarded in the light of an original filing at the time it is done and in the absence of actual fraud is. good and valid as against subsequent liens." JOHNSON, J., dissented from this view; and in a subsequent case in the same court, (Newell v. Warner, 44 Barb. 258), delivering the opinion of the court, he says of the case of Swift v.. Hart: "I dissented from the majority of the court in the case referred to and am still entirely unable to see how it is that when the statute says in plain terms, that unless a certain thing is done, within a certain time, the mortgage shall cease to be valid as against creditors, its validity can be restored or continued by doing the thing at another and different time. I do not propose to argue this question over but submit to the authority of the decision." |