The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1854-10-06
Marine Court.
Before Justice Mccarthy.

JUDGMENT CREDITORS AGAINST NORTG AGHEs
ocT 5-Schehotse ceainst Orser, Sheriff Of Nec York
This action brought to recover from dsfend ant
Sheriff Of the city, for seizrg upon and selling 600
segars formerly belonging to Shell, and By him
morss ged to the plaintiff for $780, to be paid in one
year from 9th May, 1854 On the 18th June the
Sheriff seized the sessrs they being at the time Of tho
lew in possession Of the tgagor who was carry.
Ing on the business Of manufa ,turing and seag 80
gais There no evdeace Of any consideration for
The mortgage any change Of possession Of the pro-
peIty but that tie mor'gtgor was using aud dispos
upon .hch tho Sheriff levied was recovered for the
tobacco from which the segsrs were made Too de-
fepdapt justified on tho execution and objected that
the mortgage not yet due tho MORTGAGE therefore,
had interest in the property and further alleged
traud in the making Of the mortgage
MCCARTHY Just!ce-The question Of whether an &C.
ton will 10 10 such case a. this Sc ms TO me to have
fully decided ir the of GrAwod against Shell
don Court Of Appeals New Yorkand in Van Ant xsrp,
sheriff, &c. plaintiff IN error sinst Newman, defend
ant appeal to The snpreue Court. In the last
goods had BEEN let to hire by Newman plaintiff to one
Busteed and sold by deendent below, absolutely sr
cuti,n against Gusteed. Newman owncv brought
action thu Court in that per savage Justice
held that the Sheriff had authority to sell the interest Of
Hue eed That il not In his power to dycst Newman,
the lessor Of his property in the goods ami that had
rot done that Newman. therefore. had right Of
action against him tn Il when the sui. was
Newman could not know that his goods would not be-
restored to him at the expiration M his lease and
there premature in bringing his suit. By parity of
also had been premature, it, upon other points Ia toe
CATO, without that he recover at NIL In the case
of Griswold against sheldon in the Court OF Appsas
which In lis facts, counterpart Of the
uLd der consideratiou-is held that, il was
provided by the mortgage that until default In Aymsnt
the mortgsgor should retain the possession ana enjoy
meot of TIE property, and as there had been no de-
fault, and tho mortgagor in possession the right
Of action for tt illegal levy, Shower Should be made
defendant, was In tue mertgagor, and not Ia tho
plaintiff On the other point rased, Of presumptive
fraud the Court f the plaintiff had attempted to
the GOODS which ho mortgagor) I'D sold to
his cus'o mers would Think for moment that
hc could succeed the statute gives greater bet
ter right 10 bona de purchaser than execution
creditor. The transectcn clearly fraudulent ia
law, against both There would DO hope Of main
tainirg honesty and fair dealing the c)uits should a.
low mortgage vendee to succeed in claim to per-
sona property against creditors and purchasers after
the debtor but aai allo xed him To deal With aud dis
pose Of II 81 his 9gsp And further:-'' Enough has
been said to show that the mortgage Was fraudulent ~
law as sgainst the creditors OF the mortgegor an
tho plaintiff should either bave been nousued the
dofendants' And again:-"The Judge aiso told the
jury thi they pass upon the question whether
sufficient reason bad been gwen for permit
ting the rgagor) to have possession of the goods
when in truth no reason excuse whatever had beea
given offered This better than telling the
jury tina they might guess there good for
the unchanged Possession" Upon both points then.
feel oiled the quoted decide anst the
plaintiff. and leave him, advised, to his action upon
his mortgage whenever any rights shall accrue to him
therefrom. Judgment for defend ant with COSTS