#### *Frisbey *vs.*Thayer.

The act authorizing a *landlord*to pursue goods carried off demised premises, and within thirty days seize them, applies only to the goods of the *tenant,*and not to goods taken by a *creditor*from the demised premises with the assent of the tenant, in payment of a *bona fide*debt, though the creditor knows the rent is due, and apprehends the landlord may distrain.

It was accordingly held in this case, that personal property taken by a *bona fide*mortgagee from demised premises by virtue of a mortgage, was not subject to be pursued and levied upon by a distress warrant.

The statute 2 R. S. 70, § 5, requiring *possession*to accompany mortgages, has no application as between a *mortgagee*and *landlord;*but in such case, *fraud in fact*may be shown.

Error from the Albany mayor’s court. Frisbey sued Thayer in the justices’ court of the city of Albany in an action of *trover*and *conversion*and recovered judgment for $32 damages, besides costs. Thayer appealed to the mayor’s court. On the trial in that court, the following facts appeared : The plaintiff, a constable in the city, claimed the property in question, being household furniture, under a *levy*made by him on the 31st January, 1838, by virtue of a *distress warrant*issued by one Stephen Paddock, for the arrears of rent due to him upon certain premises demised to *Thomas*Teeter. The plaintiff found the property in charge of an auctioneer, and forbade its sale ; but the auctioneer sold it by the direction of Thayer, who had taken possession of it six days previous to Frisbey’s levy, by virtue of a *mortgage*executed by *Teeter*to *Robert KirJepatricJc,*bearing date in July, 1837, conditioned for the payment of about $47, and authorizing a sale of the property in default of payment. The property was taken by Thayer, and *removed from the demised premises.*The mortgage was given for a full and fair consideration; and the property remained in the possession of the *mortgagor,*and of his widow since his death, until it was taken by Thayer. The recorder instructed the jury, that if they should find that the mortgage was *303given in good faith, and for a valuable consideration, and that the property was removed from the demised premises without the connivance of the tenant before a levy was made under the distress warrant, the landlord had not *the right to follow the goods for the purpose of obtaining [ *397 ] satisfaction of his rent, and the defendants would be entitled to their verdict. The plaintiff’s counsel requested the recorder to charge the jury, that the mortgage was void for the want of a *change of possession*of the property, it having remained with the mortgagor and his family from the time of the execution of the mortgage until it was taken away by Thayer. The recorder refused so to charge, and the plaintiff excepted to the charge and to the refusal. The jury found a verdict for the *defendant,*on which judgment was entered. The plaintiff sued out a writ of error. The case was submitted on written arguments by

*H. G. Wheaton,*for the plaintiff in error.

*O. A. Kingsley,*for the defendant in error.

*By the court,*

Nelson, C. J.

Our statute, 2 *R. S.*413, § 16,17, allows the landlord to pursue the goods carried off the demised premises, and seize them wherever found within thirty days after the removal, &c. except when “ *sold before such seizure made, in good faith, and for a valuable consideration to a person not privy to such fraudulent removal!*This act was taken from 8 *Anne, ch.*14, *extended by*11 *Geo. II. ch.*19, which contained a like exception. *Bradby on Dist.*96-7; *Comy's Land, and Ten.*380. The act applies only to tho goods of the tenant, 5 *Maulé f Sel.*38, and not to goods taken by a creditor with the assent of the tenant in payment of a *bona fide*debt, though he knows rent is due and apprehends the landlord may distrain. *Comy's Land, and Ten.*418. This last case stands upon the familiar principle, that the debtor may give preference to a creditor. Rent is a meritorious demand, and the law affords very ample remedies to enforce payment; but the landlord can set up no peculiar preference over other *bona fide*creditors, until he acquires an actual *lien*upon the goods.

The case under consideration, needs not the benefit of the exception in the seventeeth section, in favor of *bona fide*purchasers, as that obviously applies to sales made after removal of the goods. The lan- '

*guage of the clause proves this. It rests upon the general [ *398 ] right of the tenant to dispose of his property, which is no more embarrassed on account of rent in arrear, than it is by any other description of outstanding debts.

It was at first held that a removal in open day not being clandestine, was *304not within the meaning of the statute of 11 *George ;*but it is now extended to all cases where by the conduct of the tenant in the removal, the landlord is turned over to the naked remedy by action; and it was accordingly held in *Opperman*v. *Smith*(4 *Dowl, and Ryl.,*33,) that where the tenant in open day, and with notice to his landlord, removed his goods, without leaving sufficient to satisfy the rent then due, and the latter followed and distrained, though the removal was not clandestine, yet it was fraudulent, (which was a question of fact for the jury,) the landlord was justified under the statute. The tenant may remove the goods, unless guilty of fraud in *fact:—a fortiori,*may the purchaser or mortgagee do so. 7 *Bing.*243. *1 C. & M.*227. 3 *Tyr.*170.

Neither does the statute, 2 *R. S.*70, § 5, making mortgages void as to creditors and subsequent purchasers apply, as the question ■ there can only arise between *judgment creditors*and the mortgagee. A distress warrant does not stand on the footing of a judgment and execution. The mortgage may be fraudulent in respect to the landlord ; but it must be a fraud at common law, where the question of fraudulent intent arises, and must be passed upon, as has been done in this case. The landlord did not need the aid of the statute, because he could always seize the goods in possession of his tenant. He could not follow them off the premises at common law; and hence the statute of *Anne f*11 *George*II. gave him the thirty *days;*but that right we have seen does not apply to goods taken in payment of a *bona fide*debt. It was said in *Reynolds*v. *Shuler,*(5 *Cowen,*329,) by Sutherland, J., that a mortgage was not a *sale*within the proviso to this act. If this be so, it does not Affect the mortgage in question, as it stands independently of it. Besides, the title bad become absolute in the mortgagee, on the forfeiture of the mortgage. (9 *Wend.*80. 11 *Id.*61.) But if it had been material, I think the intimation would have been worthy ( *399 ] *of farther consideration. A mortgagee is deemed a purchaser *sub modo ;*he is so regarded every day under the statute respecting fraudulent' sales, (2 *R. S.*70, § 5,) and protected within the saving clause in favor of subsequent purchasers in good faith, (See *also Powell on Mort.*281, *and Johns. Ch. R.*417.) The reason of the exception applies as strongly to the extent of the interest involved, to the mortgagee, as in case of an absolute purchase. But it is not important to pursue this point.

The ground upon which I place the case is: 1. The mortgage was taken to secure a *bona fide*debt, and was valid as between the parties : 2. It was valid also in respect to the *landlord,*unless fraudulent in fact, not falling within the fifth section of the act declaring sales and mortgages fraudulent, unless accompanied with possession: 3. The property was not the tenant’s when it was removed from the premises, within the statute authorizing the landlord to pursue it with his warrant within thirty days.

Judgment affirmed.