Matter of National Mechanics Banking Association . Mariposa Co.

INGRAHAM, J. I think the motion should be granted : 1st. Because there is no propriety in allowing one cred-itor to make a motion for a receiver, and, by stipulation with the attorney for the defendants, to allow said proceeding to lie dormant for months, until other creditors proceed to collect their claims, and then by consent of the attorney, attempt to gain a priority. The rule which is applied to dormant executions should be applied to such proceedings, and the vigilant creditor should be allowed priority.

2d. Because it is apparent, from the whole facts in the case, that there was collusion in regard to the proceeding in the case of White against the company, to defeat the claim of the Bank. The same attorney appeared for the defendants, in both cases; and while he was postponing the case of the bank, from day to day, under offers of settlement, and after the appointment of a receiver, and approval of the bond, while, under another promise of an offer of settlement, he obtained a postponement of the filing of the papers, and a further delay for the same purpose, such attorney was consenting to the proceeding in the case of White; which was concealed from the attorneys for the bank, and the application for which was made out of the ordinary course of business, and not at the usual place for hearing such motions, as prescribed by the rules of the court.

3d. Because, in fact, the receiver in the case of the bank was appointed on the 17th of May, and the bond approved on the 18th of May; while the order in the other case was made on the 18th of May, and the bond approved on that day.

The attempt to overreach and defeat proceedings of other creditors, by obtaining a postponement of the filing of the papers, should not be allowed to succeed, when it is apparent that the attorney of the defendants knew of both proceedings; knew that the receiver had been ap

Ballou . Cunningham.

pointed on the 17th of May; and obtained such delay for the evident purpose of advancing the other application, with the view of giving priority therein.

The motion should be granted, with $10 costs.

[NEW YORK SPECIAL TERM, July 19, 1871. Ingraham, Justice.]

BALLOU vs. CUNNINGHAM.

Where a chattel mortgage contained a power to the mortgagee, in case of default in payment, to take possession of the property, and sell the same, and after deducting all expenses, to apply the proceeds in payment of the debt; and in case he should at any time deem himself unsafe, that he might take possession of the property and sell the same at public or private sale, before the day of payment; Held that on default in payment at the day, the mortgagee might sell the property at private sale, without notice to the mortgagor; and that if the sale was fair and bona fide, the right of the mortgagor to redeem was foreclosed.

Held, also, that under such circumstances, the mortgagee did not, by selling the property at private sale, render himself liable to account to the mortgagor for its full value; nor could the latter be allowed to prove the value of the property, for the purpose of recovering the difference between that sum and the amount realized from the sale. MULLIN, P. J., dissented.

A

PPEAL by the plaintiff from a judgment entered at a special term, on the verdict of a jury, in his favor, for $47, a smaller amount than was claimed by him.

The action was brought by the plaintiff, the mortgagee named in a chattel mortgage executed by the defendant, to recover a balance claimed to be still due thereon. The mortgage was given to secure the payment of $200, with interest, stated to be borrowed money. It was dated November 1, 1867, and contained the following proviso: "Provided always, and this mortgage is on the express condition, that if the said Cunningham shall pay to the said Ballou the sum of two hundred dollars ($200) with interest thereon, as follows, viz: three months after date,

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Ballou . Cunningham.

which the said Wm. Cunningham hereby agrees to pay, then this transfer to be void and of no effect; but in case of non-payment of the said debt and interest at the time above mentioned, the said Ballou shall have full power to enter upon the premises of the said party of the first part, or any other place or places where the goods and chattels aforesaid may be, to take possession of said property to sell the same, and the avails (after deducting all expenses of the sale and keeping of the said property,) to apply in payment of the above debt; and in case the said Ballon shall at any time deem himself unsafe, it shall be lawful for him to take possession of said property and to sell the same at public or private sale previous to the time above mentioned for the payment of said debt, applying the proceeds as aforesaid, after deducting all expenses of the sale and keeping of the said property. If from any cause said property shall fail to satisfy said debt, interest, costs and charges, I covenant and agree to pay the deficiency." The other material facts are stated in the opinion of the court.

Jones & Ballou, for the appellant.

I. The mortgage in this case contains an express promise to pay the amount secured; hence this action will lie. (Culver v. Sisson, 3 Comst. 264)

II. The mortgage provides that in case default is made in payment, the mortgagee may take possession of the mortgaged property and sell the same; and in a subsequent clause of the same sentence, that in case the mortgagee shall at any time deem himself unsafe, he may take possession of the mortgaged property and sell the same at public or private sale. This language, by construction and upon authority, authorizes a public or private sale in either case. (Chamberlain v. Martin, 43 Barb. 607.) 1. The mortgage provides for a sale in case of default in payment, but does not specify whether a public or private sale, leav

Ballou . Cunningham.

ing the manner of sale doubtful or ambiguous; hence the ambiguity must be taken most strongly against the mortgagor, whose language is used. "Verba chartarum fortius accipiunter contra proferentum." (Breasted v. Farmers' Loan and Trust Co., 8 N. Y. 305.) 2. By the acknowledged rule of construction, noscitur a sociis, the first member of the sentence, if there be any doubt in its meaning, should be controlled by the other members which are entirely unequivocal. (Broom's Leg. Maxims, 450, and cases cited. 8 N. Y. 304.) 3. The word "sale," in the first clause of the sentence, being unqualified, but being coupled with the words "public or private," in the second clause of the same sentence, shows that it is used in the same sense in both places. "Copulatio verborum indicat acceptationem in eodem sensu." (Broom's Legal Maxims, 450.)

III. The property mentioned in the mortgage having been regularly sold, under a power contained in the mortgage, and credited upon the mortgage debt, and the sale being free from fraud or collusion, evidence as to the value of the mortgaged property is inadmissible, and the balance may be collected of the mortgagor by action. (Olcott v. Tioga R. R. Co., 40 Barb. 180; 27 N. Y. 546.)

J. T. Spriggs and A. Coburn, for the respondent.

I. The answer of the defendant sets up an equitable defense, which the court below excluded, except as to the cow. This was error; but it was an error in favor of the plaintiff, and affords no grounds for a new trial on this appeal. (Western Bank v. Sherwood, 29 Barb. 383. Pratt v. Stiles, 17 How. Pr. 211, 221. Archer v. Cole, 22 id. 411. Hinman v. Judson, 13 Barb. 629.) 1. The offer was, substance, to show that the property was amply sufficient, if properly sold, to pay the debt and expenses. 2. The hay mortgaged was ten tons. Three tons of it sold for $51, or $17 per ton. What became of the remaining seven tons? There is no pretense that the defendant used

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Ballou v. Cunningham.

or sold any of it. 3. If this hay remained unsold, as we insist it did, there was at least $100 worth of hay which should have been applied; and if applied, the mortgage was paid in full. 4. Instead of this, the case shows, if it shows any thing about the balance of the hay, that the hay, the black mare, the double harness and the bobsleighs were sold for $60.87. 5. The sale was without notice to the mortgagor, and did not foreclose his equity of redemption. And having the right in equity to redeem, he had the right to insist that upon a fair sale and application of the property, the mortgage debt was paid. (Hart v. Ten Eyck, 2 John. Ch. 62, 100, per Kent, Ch. Chamberlain v. Martin, 43 Barb. 607, 609. Manning v. Monaghan, 23 N. Y. 549, 555, per Comstock, J.) 6. But this was an error in favor of the plaintiff, and he cannot take advantage of it on this appeal.

II. The appeal in this case is from the judgment, and does not bring up for review the motion for a new trial on the judge's minutes. (Code, § 348, and notes. Coyle v. City of Brooklyn, 53 Barb. 41, and cases cited.) 1. On appeal from the judgment, it cannot be urged that the verdict is against the weight of evidence. (Anthony v. Smith, 4 Bosw. 503. Hoxie v. Greene, 37 How. Pr. 97.) 2. Nor can the finding of the jury be reviewed on this appeal, except so far as the question of law raised at the trial, and the exception taken, may render it necessary. (Marquart v. LaFarge, 5 Duer, 559. Stettiner v. Granite Ins. Co., Id. 594.) 3. Such an appeal only brings up questions of law. (Bulkeley v. Kettletas, 4 Sandf. 450. Benedict v. N. Y. and

Harlem R. R. Co., 8 N. Y. Leg. Obs. 168.)

III. The ruling at the circuit, as to the value of the cow, was correct, both upon the law and the facts, and the judgment should be affirmed. (Archer v. Cole, 22 How. Pr. 411. Pratt v. Stiles, 17 id. 211, 221, and cases cited. Chamberlain v. Martin, 43 Barb. 607. Manning v. Monaghan, 23 N. Y. 549, 550. Craig v. Tappin, 2 Sandf. Ch. 78,