Cooper v. Koppes. It is confidently maintained that this is still the law of New York. It will be seen that the case of Herrick v. King, supra, adds nothing to the authority of Swift v. Hart. The case depended upon a construction of the New York statute. The court says: "As the question relates to the sale of personal property, at the time of the transaction in the state of New York, and the parties are all residents in that state, and the interest of no resident of New Jersey is affected, the question must be determined by the laws of New York. The courts of New York have settled the construction of this act. * * * They have determined that the re-filing of a copy of such mortgage, after the expiration of the time in which such filing is required, revives the mortgage, and makes it good against all subsequent creditors." Swift v. Hart is cited as the authority for the proposition. The judge delivering the opinion then adds: "It is not necessary that I should concur in this as a correct exposition of the statute of that state; it is enough for me to know that it is the construction adopted by its courts." We shall see, however, that Swift v. Hart, so far as it holds that a re-filing after the year is equivalent to an original filing, has, to say the least, been exposed to cold treatment at the hands of the courts of New York. We find in the syllabus of Marsden v. Cornell, 9 Hun, 449, the following: "Swift v. Hart, 12 Barb. 531, doubted." Gilbert, J., speaking for the court says: "I am not aware that the remarks of the learned justice in Swift v. Hart have ever been approved; on the contrary the subsequent decisions, so far as they bear upon the question, seem to be contrary to the views there expressed." (Citing Thompson v. Van Vechten, 5 Abb. Pr. 476; s. c. 27 N. Y. 583; Ely v. Carnley, 19 N. Y. 496; Porter v. Parmley, 52 N. Y. 188; Newell v. Warren, 44 Barb. 265; s. c. 44 N. Y. 248.) In the same case in the court of appeals of New York, 62 N. Y. 215, we find in the syllabus: "Swift v. Hart, 12 Barb. 531, limited." Folger, J., says: "The appellant cites Swift v. Hart, 12 Barb. 531, which, so far as it is relied upon by him, is not in harmony with the views here expressed. But that case, so far as it conflicts, is not approved Cooper v. Koppes. by this court." Thus we see that this case, the chief reliance of the plaintiff in error, having for many years occupied a conspicious place in the rogues' gallery of overruled and doubted cases, fails as authority for the proposition it is cited to sustain. With it falls the authority of the only other case relied upon, Herrick v. King, 19 N. J. Eq. 80, which follows it as an exposition of the New York statute but with a covert disapproval of its reasoning In the very next year the same court declared in National Bank of the Metropolis v. Sprague, 20 N. J. Eq. 27, of an act like our own: "The act says it shall cease to be a lien unless a copy is re-filed within thirty days before the expiration of the year. The words are plain and positive; there is no room for construction. The object indicated is a sensible one. But it is not for the courts to find a good reason for every enactment; it is enough for them that it is so clearly enacted." * * We are thus left to consider our own statute by the light of the adjudications of this court, unembarrassed by the construction given to similar statutes by the courts of other states. It is true that it is said in Seaman v. Eager, 16 Ohio St. 209, that "each re-filing places it (the mortgage) for the purpose of notice, on the footing of a new mortgage." But this is to be understood as contemplating a re-filing within the thirty days next preceding the expiration of one year from the former filing; for the statement quoted is immediately preceded by the declaration: "The lapse of a full year, without a renewal of the filing, will, at any time, render the instrument invalid as against creditors." In Biteler v. Baldwin, 42 Ohio St. 125, it was held that the re-filing of a chattel mortgage before the commencement of the thirty days is not sufficient to preserve the lien of such mortgage beyond the year after the first filing. Speaking for the court, McIlvaine J., says: By the plain words of the statute, that mortgage became void as to the purchaser after the expiration of one year from the date of its filing, unless within thirty days next preceding the expiration of the year, it was re-verified and re-filed, as provided by the statute. There was no such re-verification and re-filing within said thirty days. The verification and 66 Cooper v. Koppes. re-filing on September 16, 1879, had no effect under the statute. Such re-filing was not intended by the parties, nor did it have the effect, in law, of destroying the lien which commenced on February 17; neither did it create a new or additional lien, under the same instrument, on the same property, for the same claim." The penalty which the statute has denounced against every unfiled mortgage, or conveyance intended to operate as a mortgage, of chattels, unaccompanied by immediate delivery, and followed by continued change of possession, is that it shall be absolutely void as against creditors and bona fide purchasers and mortgagees. Of course, as against the mortgagor, and purchasers and mortgagees with notice, no filing is necessary. The one way of averting this penalty is strictly to observe and follow the statutes authorizing the filing and re-filing of such mortgage. Biteler v. Baldwin, supra, is authority for the proposition-if any authority beyond the statute is necessary-that the mortgage creates but one lien. The most the statutes were designed to effect by a re-filing is the preservation or continuation of that lien, Counsel for Cooper & Co. concede in argument: "That the continuity of the lien was broken and that the mortgage was void from July 4 to July 8, 1880, as to creditors," etc. Here then, by common concession, was, as to creditors a dead lien. Where in the statute do we find authority to resurrect or revive it? There is none. The contract originally entered into between the parties was forever at an end, so far as it could affect creditors, and bona fide purchasers and mortgagees. The property was still in the possession of the mortgagor. He held it free from all liens as against creditors. It was not in the power of the mortgagee, by his own act, to create such a lien. Such lien could only have been created through convention of the parties. The possession by the mortgagor of the property presumed his ownership of it. On the 5th day of July it was wholly unincumbered as to creditors, and was, in his hands, a basis of credit. If the mortgagee, whose lien was dead, could, by his own act, place a lien upon it, the statute Burke v. Railway Company. would thus become an instrument of the very species of fraud it was designed to avert. "A re-filing of the mortgage must be effected within the time limited for that purpose. It is nugatory if done either before or after that time. A re-filing after that time is not effectual to revive and continue the validity of the mortgage for a year after such re-filing." Jones Chat. Mort., sec. 287. "The mortgage may be re-filed at any time within the period limited for the purpose, which is usually thirty days previous to the expiration of the term of one year from the first filing. But a re-filing before the commencement of the thirty days would be wholly unavailing, and as nugatory as one after the expiration of that time." Boone on Mortgages, section 250. The circuit court properly reversed the judgment of the court of common pleas. Judgment of the circuit court affirmed. BURKE v. RAILWAY COMPANY. Practice-Injunction- Whether order overruling motion to dissolve (Decided May 22, 1888.) ERROR to the Circuit Court of Franklin County. Harrison, Olds & Marsh and Burke, Ingersoll & Sanders, for plaintiff's in error. George Hoadly, Simpson, Thacher & Barnum and Earnhart, Hunter & Butler, for defendants in error. BY THE COURT. An order of the court of common pleas overruling a motion to dissolve an injunction is an order affecting a substantial right made in a special proceeding which may be reviewed on error by the circuit court. Judgment reversed and cause remanded. Shotwell v. Moore. SHOTWELL V. MOORE. Taxation Conversion of taxable property into "greenbacks' -Constitutional law 1. Subdivision 16 of section 2737 of the Revised Statutes of Ohio, which provides that the statement of each person required to list property, shall set forth "the monthly average amount or value for the time he held or controlled the same, within the preceding year, of all moneys, credits, or other effects, within that time invested in, or converted into bonds or other securities of the United States," is not in conflict with section 3701 of the Revised Statutes of the United States, which provides that, "all stocks, bonds, treasury notes and other obligations of the United States, shall be exempt from taxation by, or under state, municipal or local authority." 2. The method provided in subdivision 16 of section 2737, for estimating the taxable value of property converted during the year into non-taxable securities, is not in conflict with section 2,of article XII, of the constitution of this state, which requires that laws shall be passed, taxing all property by a uniform rule, according to its true value in money. (Decided March 27, 1888.) ERROR to the Circuit Court of Harrison County. The original action was commenced in the court of common pleas of Harrison county, by Albert J. Harrison, as treasurer of Harrison county, against Stewart B. Shotwell, the plaintiff in error. The original pétition reads as follows: "The plaintiff, Albert J. Harrison, says he is the duly elected, commissioned, qualified, and acting treasurer of Harrison county, Ohio. Plaintiff says that personal taxes to the amount of twenty-three hundred and twenty-four dollars and eighty-nine cents stand charged against the defendant, S. B. Shotwell, on the duplicate of taxes of said county, placed in the hands of this plaintiff for collection by the auditor of said county, which said taxes are due and unpaid, and said defendant is indebted to said Albert J. Harrison, as treasurer of said county, in the sum of $2,324,89, the sum charged against defendant as tax as aforesaid. |