On the sale of the house by Curtis to Nelson, the gas fixtures and mirrors were specially bargained for and purchased by Nelson, with the house. They were not mentioned in the deed, nor was any bill of sale of them given, but these were not necessary, for the title to the chattels passed to the purchaser by delivery.

Nelson, after this purchase, executed the mortgage to the defendant, under the foreclosure of which it claims these chattels. He testified that they were in the house when he mortgaged it, and that when he applied for the loan he represented to the defendant that they were to go with the house; that the house included mirrors, gas fixtures and so forth. No mention of them was, however, made in the mortgage, nor was any separate mortgage of them given.

Nelson afterward sold and conveyed the house and lot to one Shrope who afterward conveyed to Cornelius C. Westervelt. These conveyances stated that the premises conveyed were subject to the mortgage to the defendant, but made no mention of the gas fixtures and mirrors.

The plaintiff's title to them is founded upon a bill of sale executed by Westervelt to William McKeage, dated the nth of December, 1874, and delivered in the same month, purporting to have been made in consideration of $1,500. Westervelt's title to the fixtures does not appear, except from the statement in defendant's answer, that they passed, by the deeds, from Nelson to Shrope and from Shrope to Westervelt. Whether there was, or was not, any further transfer, written or verbal, was not shown on the trial. They may have passed in the same way that they did from Curtis to Nelson. It was shown, however, that Westervelt was in possession of them at the time of the execution by him of the bill of sale to William McKeage, and that he delivered possession of them to McKeage, to whom he had contracted to sell the house, together with the gas fixtures and mirrors. This was sufficient prima facia evidence of Westervelt's title, which was not disputed.

Before the foreclosure sale McKeage paid a large part of the purchase-money payable under his contract with Westervelt, by conveying to him certain real estate in New Jersey, which was, by the contract, to be taken as a payment of $23,000 of such purchase-money.

The sale, under the foreclosure of the defendant's mortgage took place in April, 1875. The defendant became the purchaser and received a deed from the referee; this deed contained no mention of the articles in controversy. The defendant, however, claimed that they passed by this deed as part of the realty, and prevented McKeage from removing them.

The claim that they became part of the realty by annexation cannot be sustained, for the reasons before stated, but the defendant contends that by reason of the verbal representations and statements made by Nelson, when negotiating for the loan, they should be deemed part of the realty and covered by the mortgage. These statements could not change the character of the property, and even if some equity, as between Nelson and the defendant, could be claimed by reason of these representations, subsequent purchasers for value, having no notice of them, could not be affected thereby. It does not appear, nor is it alleged, that before the foreclosure sale, either Shrope, Westervelt, or McKeage had any such notice, and it does appear that Wm. McKeage, before defendant claimed the articles, paid a large part of the purchase money payable under his contract with Westervelt, which contract embraced the chattels in question. There was no legal mortgage of them, and the purchaser from Westervelt, without notice was not affected by a merely equitable lien of the mortgagee, if any such existed. Nor was any such lien asserted or enforced in the foreclosure suit. We do not, however, intend to decide that such a lien did exist.

It is further claimed that Wm. McKeage, having been present at the foreclosure sale, and having failed to give any notice of his claim of title to the chattels, his silence estops him from asserting it against the purchaser. It is sufficient to say on this point, that the property exposed for sale was the house and lot only, and there was no announcement that the chattels in question were to be included in the sale. There was no occasion, therefore, for any protest or other proceedings on the part of McKeage.

The plaintiff claims by assignment from Wm. McKeage executed after the cause of action for a conversion of the property by the defendant had accrued. This assignment transferred McKeage's title to the property as well as the cause of action. The consideration for it was not a material subject of inquiry so long as it was valid between the parties, and a recovery by the plaintiff would protect the defendant against any claim by Wm. McKeage.

The judgment should be affirmed.

Judgment affirmed.1

Hoyle V. Plattsburgh And Montreal Railroad Co

54 New York, 314. - 1873.

Suit to foreclose two mortgages given by the Plattsburgh and Montreal R. R. Co. upon its railway, corporate and other franchises and equipments. The instruments were duly recorded as real estate mortgages but were not filed under the chattel mortgage act of 1833. The defendant Vilas answers, claiming to be the owner of the rolling-stock of the road under execution sales made since the giving of the mortgages.

A reference was ordered to determine whether or not the rolling-stock was subject to the lien of the mortgages. The referee held that, though the mortgages covered the property in question, they were void as to that property, as against subsequent judgment creditors because not filed as chattel mortgages. Plaintiff excepted and the exceptions were allowed by the Special Term, which decision the General Term upheld. Defendant now appeals to this court.

Johnson, C. - The first question necessarily to be decided in this case is, whether the rolling stock of a railroad is personal property, or whether it is to be deemed constructively annexed to the road upon which it runs, so as in law to be regarded as part of the realty. If it be determined that rolling-stock retains its character of persona] property, then the question arises whether a mortgage of a railroad and its equipment needs to be filed under the statute of 1833, requiring mortgages of personal property to be filed when the possession of the property is not immediately delivered to the mortgagee. Laws of 1833, chap. 279, p. 402. The questions thus presented are not authoritatively determined in this State. The opinion of the Supreme Court has been given in four reported cases. The earliest was that of The Farmers' Loan and Trust Co. v. Hendrickson, 25 Barb. 484, in which the judgment rendered in October, 1857, by Justices S. B. Strong, Birdseye and Davies, declared that as between mortgagees and judgment creditors the rolling-stock was to be deemed fixtures, and consequently that such a mortgage did not need to be filed under the act of 1833. In this case the mortgage specified engines, tenders, cars, etc., as part of the property mortgaged, and the rights of the plaintiffs might have been sustained by holding either that the chattel mortgage law did not apply to railroad mortgages, or that engines and cars were fixtures. The court rejected the former ground and placed the decision on the position that the rolling-stock was part of the realty.