On appeal from the District Court of the city of New Brunswick.
For the appellant, Ezra W. Karkus.
For the respondents, George J. Miller.
Before Justices Parker, Lloyd and Perskie.
The opinion of the court was delivered by
PERSKIE, J. This appeal brings up for review a judgment rendered by the judge, sitting without a jury, in favor of the defendants-respondents, hereinafter called defendants, and against the plaintiff-appellant, hereinafter called the plaintiff, in an action of replevin. The agreed state of the case discloses the following facts: John Avizino and Frank Vetrano were tenants at premises, 261 New Brunswick avenue, Perth Amboy, New Jersey. On January 3d, 1933 (nine-thirty A.M.), they made, executed and delivered a chattel mortgage on the goods and chattels contained in the premises to the plaintiff. It was recorded at three-ten o'clock (P.M.) of the same day. At eleven o'clock (A.M.) of the same day -- after the chattel mortgage had been executed and delivered -- but before it was recorded, the landlord caused a warrant of distress to be issued for rent due from December 21st, 1932, to January 3d, 1933. A levy and inventory was made thereunder. The constable or bailiff of the landlord refused to permit the removal of the goods by the plaintiff, who claimed same by virtue of a default in the terms and conditions of the chattel mortgage, the bailiff claiming a prior lien by virtue of the distress. Whereupon this suit. By way of explanation it should be pointed out that a judgment had been entered against Louis Dartz, originally involved in this case, but it is agreed that he is not now concerned in this appeal. Succinctly stated, the question involved on this appeal is whether the lien of the landlord or the lien of the plaintiff (mortgagee) has priority.
No case in our state has been brought to our attention, nor have we been able to find any directly on all fours with the instant case. The authorities are not in accord. In order to review the cases in our state touching certain phases of this question it becomes necessary to refer to the pertinent sections of our act entitled "An act concerning mortgages on chattels (Revision of 1901)," Comp. Stat., p. 463, which are as follows:
Section 4. "Every mortgage or conveyance intended to operate as a mortgage of goods and chattels hereafter made,
which shall not be accompanied by an immediate delivery, and followed by an actual and continued change of possession of the things mortgaged, shall be absolutely void as against the creditors of the mortgagor * * * unless the mortgage * * * be recorded as directed in the succeeding section of this act * * *" and
Section 8. "Every chattel mortgage heretofore recorded according to law or hereafter recorded pursuant to the provisions of this act shall be valid against the creditors of the mortgagor * * * from the time of the recording thereof until the same be canceled of record * * *."
Sections 4 and 8 of the aforesaid act in so far as it is applicable to the issue presented is in substance similar to sections 4 and 9 of the act of Pamph. L. 1885, p. 318. An exhaustive and most interesting and historic review of the latter act, as it then remained, is found in the case of Roe v. Meding, 53 N.J. Eq. 350. In this case on page 367, Judge Van Syckel held:
"Our cases uniformly hold that the object of these enactments (Chattel Mortgage acts) was to give publicity to liens upon personal property, and to sweep away secret arrangements, by which creditors were embarrassed and defeated. DeCourcey v. Little, 4 ...