He must also be a creditor who dealt with the mortgagor subsequently to the execution of the mortgage and without notice thereof. PURCHASER IN GOOD FAITH-ANTECEDENT INDEBTEDNESS.—One who pur chases property or takes a security for an antecedent debt is not entitled to the protection of a statute purporting to protect purchasers and encumbrancers in good faith for value.

CHATTEL MORTGAGES.-ONE HAVING NOTICE of the existence of a chattel

mortgage cannot treat it as void because it has not been filed for record. CREDITORS, WHO ARE PROTECTED AS.-If a statute declares a mortgage void, as to the creditors of the mortgagor, unless filed in the office of the registrar of deeds, the word "creditors" does not include those persons whose debts were contracted before the execution of the mortgage and while there was no default in not filing it, and who have in no manner altered their position to their detriment before such filing. CHATTEL MORTGAGES-RENEWAL BY REFILING.-A STATUTE REQUIRING CHATTEL MORTGAGES TO BE REFILED at a specified time after they are recorded, with a statement of the amount remaining due, must be construed with a view to the object of the law requiring such mortgages to be filed for record. Therefore, if the mortgagee takes possession of the property, and thereby gives notice of his relation to it, the failure to renew by the filing thereof is immaterial. CHATTEL MORTGAGES.-AFTER THE TAKING POSSESSION of personal property by the mortgagee he need not renew such mortgage by filing a copy thereof with the registrar of deeds under a statute declaring that, in order to preserve priority of lien, every chattel mortgage must, every three years, be renewed by filing a copy thereof with such registrar. A CHATTEL MORTGAGE TAKEN TO SECURE AN ANTECEDENT DEBT is enti. tled to the same protection against subsequent attaching creditors as any other mortgage.

CHATTEL MORTGAGE.-A CREDITOR WHO HAS NOT CHANGED HIS POSITION after the making and before the filing of a chattel mortgage executed by his debtor in favor of another creditor, but has merely remained inactive, does not become entitled, upon subsequently levying an attachment, to precedence over a mortgagee because the latter has not filed his mortgage for record.

Ball & Watson and Rourke & Allen, for the appellant.

Goodwin & Van Pelt and George D. Emery, for the respond

ent.

197 CORLISS, C. J. This litigation presents a strife for supremacy between a chattel mortgagee, the plaintiff, and appellant, and an attaching creditor of the mortgagor, one of the defendants and respondents. The sheriff who made the attachment and the creditor in whose behalf it was made are both parties defendant. The nature of the action is replevin. To sustain it, the plaintiff must show a valid chattel mortgage, and that its lien is superior to that of the attachment. The mortgage has been assailed as invalid for want of a sufficient description of the mortgaged property. It was executed

535 at Oshkosh, in the state of Wisconsin, on property in the then territory of Dakota. The portion of the mortgage material to a proper consideration of this point reads 198 as follows: "The following described goods, chattels, and property, viz: 4,000 bushels of wheat, in granary on section 19, township 134, range 56; 38 horses, being all the horses on said section 19; 26 head of cattle, cows, bulls, steers, heifers, etc., being all the cattle on said section; 6 self-binders; 7 sulky 16 in. plows (make, Flying Dutchman); 2 Flying Dutchman gangplows; 4 Van Brunt 3 horse seeders; 1 broadcast Stowbridge seeder; 6 4 horse drags; 16 set double harness; 2 top buggies; 1 platform wagon; 7 double-heavy lumber-wagons and racks; 80 tons hay; 2,000 bushels oats; and all other personal property on said section-all said property being on said section; also 1 threshing-machine, together with all the appurtenances," etc. We think that the description is sufficient, within the rule which merely requires that it should suggest such inquiries as will enable a third person by the aid thereof to identify the property. The property, with an exception which will be referred to hereafter, was described as being situated on section 19, township 134, range 56. The mortgage was filed in Ransom county, territory of Dakota, and there was found within that county a description of land corresponding with the description in the chattel mortgage. We think that the fact that neither the county nor the state in which this real estate was located was stated in the mortgage is unimportant, because, under the law requiring the mortgage to be filed in the county where the property is situated, the mortgagee filed it in Ransom county, in the then territory of Dakota, and within that county it was shown that a piece of land known, according to the government survey, as "section 19, of township 134, in range 56," is situated, and that upon it was property answering to the description. contained in the mortgage, owned by the mortgagor. There is no evidence that as to any of the classes or kinds of property described in the mortgage there was any greater number belonging to that class than the number mentioned in the mortgage. Without further discussion of this point or a review of the authorities, we refer to the extended note to the case of Barrett v. Fisch, 76 Iowa, 552; 14 Am. 199 St. Rep. 238, 239, et seq., as containing a collation of the decisions, and we are satisfied that they fully sustain our view in this respect.

It was urged that the only means of identifying the prop erty intended to be mortgaged was by its location at the time of the execution of the mortgage, and that there is no evidence which fixes its situs at the precise moment of the giv. ing of the security. But it appears to be undisputed that all of the property, except an engine, separator, and some plows, were on this section 19 the day the property was attached, which was only three days after the execution of the mortgage. Having in view the character of the property, and the fact that the owner thereof, Mr. Morrison, also owned this tract of land, that the property seems to have been kept there constantly, and there being no proof that it was placed upon this farm after the execution of the mortgage, we are clear that there is nothing in this contention; but, as to the engine, separator, and some of the plows, we must hold that the description in the mortgage was insufficient. It appeared that they were not upon section 19, and there was no other description of them, aside from the incorrect statement as to their location, sufficient to point out the property to a third person within the rule governing such cases.

The attachment, it is claimed, was made after the execu tion but before the filing of the mortgage. Assuming this to be so, still the question remains whether the attachment lien is superior to that of the mortgage. That the lien of the mortgage was good as between the parties to it without the filing thereof cannot be questioned. The attaching creditor can be in no better position, unless by virtue of the statute. It provides as follows: "A mortgage of personal property is void as against creditors of the mortgagor and subsequent purchasers and encumbrancers of the property in good faith for value, unless the original, or an authenticated copy thereof, be filed by depositing the same in the office of the register of deeds of the county where the property mortgaged, or any part thereof, is at such time situated." The invalidity of the mortgage is claimed, not by a subsequent purchaser 200 or encumbrancer, but by an attaching creditor, who attached for a debt contracted before the giving of the mortgage. It is therefore necessary to determine the meaning of the word "creditors" in this statute. It is important that there should be kept in mind a distinction between the right of a general creditor to insist that an unfiled chattel mortgage is void and the ability to enforce this right.

While an unfiled chattel mortgage may be

537 void as to a general creditor, he cannot avail himself of the statute until he has armed himself with attachment or execution and levied on the property, or has in some other way secured a lien thereon. Before he has seized the property covered by the chattel mortgage, or secured some lien thereon, he is in no position to raise the question that the mortgage is void as to him: People's Sav. Bank v. Bates, 120 U. S. 556; Kitchen v. Lowery, 127 N. Y. 53; Thompson v. Van Vechten, 27 N. Y. 568; Dempsey v. Pforzheimer, 86 Mich. 652. The statute does not, however, require that he should be armed with process or have a lien on the property to entitle him to come within the category of "creditors," as to whom the unfiled instrument is a nullity. The mortgage is not void as to creditors who have seized the property, or who hold process under which they can seize it. This is not the language of the statute. The mortgage is void as to creditors, and nothing is said in the statute about the necessity of a creditor's having secured a lien on the mortgaged property. The fact that the creditor cannot assail the mortgage until he has seized the property is of no moment in determining whether he belongs to the class of persons as to whom the mortgage is void. Whether he belongs to that class is one question; whether he is in a position to derive benefit from belonging to that class is another and entirely different question. The two inquiries are distinct, and each is independent of the other. When he arms himself with process, and seizes the mortgaged property, the court will then inquire whether he is a "creditor," within the meaning of the statute which declares void the mortgage as against "creditors." The facts which determine this point are 201 independent of the fact of seizure, and can derive no aid therefrom. The inquiry is whether he is a "creditor" within the spirit of the law, and not whether he is a creditor with process which he has levied on the property covered by the mortgage. If it were necessary that he should have seized the property before he can be regarded as a creditor within the statute great wrong could be done the public by the withholding of a chattel mortgage from record, for which those wronged would have no redress. After a chattel mortgage had been given, and while it was withheld from record, a loan might be made to the mortgagor, or credit might be extended to him on sale of property, the creditor relying upon the apparent freedom of the debtor's property from

liens. All the harm that could be done the creditor has now been consummated. The subsequent filing of the chattel mortgage cannot undo it. It would be a gross perversion of the statute requiring chattel mortgages to be filed to assert that the right of this creditor successfully to attack the unfiled mortgage depends on his seizing the property under process before the mortgage is filed; that until then he cannot be considered a creditor as to whom the mortgage is void. It is true that he must seize the property before he can raise the point, but he need not seize it before the instrument is filed. Whenever he does seize it, whether before or after the filing of the mortgage, he is then in a position to urge that he was before the mortgage was filed a "creditor," within the meaning of the statute. Strong authority exists to support this proposition that the fact of a levy under process does not enter into the question whether the creditor is one whom it was the purpose of the law to protect as against unfiled chattel mortgages: Thompson v. Van Vechten, 27 N. Y. 568. In this case the court say: "But when they [creditors] present themselves with their process they may, I think, go back to the origin of their debt, and show, if they can, that when it was contracted the encumbrance with which they are now confronted existed, and was kept secret by being withheld from the proper office": See, also, Fearey v. Cummings, 41 Mich. 376; 202 People's Sav. Bank v. Bates, 120 U. S. 556, 562. If the word "creditors" is to have its widest significance, then no chattel mortgage can ever be valid as against the creditors of the mortgagor, unless it is filed simultaneously with its execution. If, when the mortgagee hurries to the proper office to file his security, he is to be deprived of its protection because a creditor, intermediate its execution and its filing, has seized the mortgaged property under attachment, it must be because the creditor so seizing it is a "creditor," within the meaning of the statute. He is not such because he has seized the property before the filing of the mortgage. This element, as we have seen, is entirely unimportant. The fact of levy prior to the filing of the mortgage has no bearing upon the question whether he is such a creditor as the statute protects. We must therefore eliminate this element from our consideration. He would be a creditor within the law just the same, although he should not secure a levy on the property until after the filing of the mortgage. If, then, the mortgage is void as to