Cooper v. Koppes

• Decision Date: 21 February 1888
• Citation: 45 Ohio St. 625,15 N.E. 662
• Parties: COOPER v. KOPPES.
• Court: Ohio Supreme Court

15 N.E. 662

45 Ohio St. 625

COOPER v. KOPPES.

Supreme Court of Ohio.

February 21, 1888

Error to circuit court, 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 refiled 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 and Branneman, 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 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 and 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.

Syllabus by the Court

A chattel mortgage which is not reverified and refiled within 30 days next preceding the expiration of one year from the filing thereof, in pursuance of section 4155, Rev. St., is void as against creditors and bona fide purchasers and mortgagees; nor is it revived as to them by being reverified and refiled after the expiration of one year from the former filing.

Such a mortgage, so refiled 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 refiling.

OWEN, C. J., (after stating the facts as above .)

If the lien of the Cooper mortgage was kept alive or revived as against creditors by the act of refiling 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) provides for reverifying 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 30 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 was filed. The question at bar has not heretofore been expressly adjudicated 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 30 days next preceding the expiration of 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 refiling 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. 530, 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 unable to see how it is that, where 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 the question over, but submit to the authority of the decision.’ It is confidently maintained that this is still the law of New York. It will be seen that the case cited from 19 N.J.Eq. 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 refiling 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 add: ‘ 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...