Benedict v. Smith
New York Court of Chancery
This was an appeal from a decree of the vice chancellor of the eighth circuit, dismissing the complainants’ bill against the defendant E. ‘Smith, and their supplemental bill against Ithamar Smith and others.
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This was an appeal from a decree of the vice chancellor of the eighth circuit, dismissing the complainants’ bill against the defendant E. ‘Smith, and their supplemental bill against Ithamar Smith and others. The original bill was filed to reach the property of the defendant therein, after the return of an execution upon a judgment against him unsatisfied ; and the object of the supplemental bill was to set aside a chattel mortgage, given by E. Smith to the other defendants, on the grounds of fraud and that there had been no change of posssesion of the property, and that the mortgage had not…
1Opinion of the Court
The Chancellor.
The defendant Ithamar Smith was an incompetent witness in this case, either for his co-defendants in the supplemental bill, or for the defendant in the original suit. The chattel mortgage to him and his associates not being accompanied by an' actual and continued change of possession of the property, and not being filed in the proper clerk’s office, as required by the act of April, 1833, (Laws of 1833, p. 402,) it was absolutely void as against the complainants as creditors of the mortgagor. It is not material in this case that a part of the mortgaged property was delivered,…
2Cited by14 opinions
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- King v. ReaSupreme Court of Colorado · 1889
- McClintock v. HelbergIllinois Supreme Court · 1897
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