Olcott v. Tioga Railroad Company. formal, the certificate, in its present form, furnishing all the security against error, and imposing upon the notary all the responsibility which it could do if another seal were added. A single private seal has often been held to bind several parties (Mackay v. Bloodgood, 9 Johns., 285; Van Alstyne v. Van Slyck, 10 Barb., 387); a seal in the space between the penal part of a bond and its condition, makes the condition a part of the sealed instrument (Reed v. Drake, 7 Wend., 345); conditions of insurance annexed to a policy are regarded as a part of the policy (Roberts v. The Chenango Mut. Ins. Co., 3 Hill, 501); and a seal at the foot of a deed, absolute on its face, is applicable to a defeasance indorsed upon the back of the deed, without date or signature. (Stocking v. Fairchild, 5 Pick., 181; Emerson v. Murray, 4 N. H., 171. The case, however, most nearly resembling the present, of any to which our attention has been called, is that of The State v. Coyle (33 Maine, 427). In that case a complaint and justice's warrant in pursuance of it, were written on the same piece of paper, and the only seal was at the end of the justice's signature to the complaint, the warrant being written beneath it. It was held that the warrant was sufficiently sealed. These authorities, particularly the last, justify the admission of the certificate of the notary, especially as such certificate furnishes presumptive proof only of the facts contained in it, concluding neither of the parties The evidence which was offered, as to the value of the property mortgaged by the Arbon Coal Company to Ketchum, as security for the payment of the notes in suit and other demands, was properly excluded. The mortgage contained a provision that, in case default should be made in the payment of the sum which it was made to secure, the mortgagee might take immediate possession of the property, and, after giving reasonable notice, might expose the same to sale at publie vendue to the highest bidder, and apply the proceeds of such sale towards the payment of said sum and the interest, render ing the surplus, if any, to the said Arbon Coal Company. In pursuance of this power the property was sold at auction in August, 1843, and all, or the greater part of it, bid off by Olcott v. Tioga Railroad Company. Mr. Ketchum, the mortgagee, for the benefit of the creditors whose demands the mortgage was intended to secure. It was not attempted to be shown that the sale was not conducted in good faith, or that reasonable notice was not given, according to the terms of the mortgage; but it was insisted that the trustee could not purchase for his own use, or for the use of the creditors of the mortgagor, at the sale conducted under his direction, and that, consequently, the right of the parties remained the same as if the mortgagee had taken and retained possession of the property, without a sale. If that was the correct view of the position of the parties, the defendants were entitled to the benefit of the proof which they offered, as in such case the mortgagee would be chargeable with the value of the property, to be applied in the reduction of the amount due on the mortgage. (Spencer v. Harford, 4 Wend., 385, 387; Morgan v. Plumb, 9 id., 292; Case v. Boughton, 11 id., 106; Carter v. Stevens, 3 Denio, 35; Craig v. Tappen, 2 Sandf. Ch., 88.) Ketchum was a trustee of the mortgagor, as well as of the creditors whose demands were secured by the mortgage. In his character of trustee, he owed to all those parties the duty of so managing the sale as to obtain the highest price which the property would bring. Under such circumstances, if he occupied that character only, he could not become a purchaser for his own benefit. A trustee or agent will not be allowed to assume a position in which his interest will come in conflict with his duty (Davoue v. Fanning, 2 Johns. Ch., 252; De Caters v. Chaumont, 3 Paige, 179; Van Epps v. Van Epps, 9 id., 238; Iddings v. Bruen, 4 Sandf. Ch., 223-263; Moore v. Moore, 1 Seld., 256); and this rule is equally applicable to transactions in real, and in personal estate. (Cook v. Collingridge, Jacob, 607; Wedderburn v. Wedderburn, 2 Kern., 731; Hall v. Hallett, 1 Cox, 134; Anon., 1 Salk., 155; Ames v. Downing, 1 Bradf., 321; White & Tudor's L. C., 111.) As trustee, merely, he would be equally prohi bited from purchasing for the benefit of a part of those interested in the sale. (3 Paige, 178.) He was, however, a creditor, whose demand, in common with others, was secured by the mortgage, and his purchase was made in behalf of all Olcott v. Tioga Railroad Company. such creditors. If, in any case, a mortgagee of chattels, selling them at auction in pursuance of a power of sale contained in the mortgage, can become the purchaser of the mortgaged property and hold it discharged from any right of redemption, the purchase by Ketchum was effectual for that purpose. It has, if I am not in error, been generally supposed that the power of sale, given to a mortgagee of chattels, whether given expressly, or left to be implied by law, authorized the mortgagee to purchase the property, at a fair sale under such power, for his own use; that express notice to the mortgagor which is required to make the foreclosure effectual (Hart v. Ten Eyck, 2 Johns. Ch., 100; Patchin v. Pierce, 12 Wend., 63; Charter v. Stevens, 3 Denio, 35,) came in place of a decree authorizing the parties to purchase; and that persons having such notice were bound to attend and protect their interests by bidding, if protection were necessary. (Bergen v. Bennett, 1 Caines' Cases, 1-14-19; Slee v. The Manhattan Company, 1 Paige, 52-74.) A different opinion was expressed in the case of The Buf falo Steam Engine Works v. The Sun Mutual Insurance Company (17 N. Y., 401); but the case was disposed of on other grounds, and the point still remains undetermined. The inconvenience and expense of a resort to the equity powers of courts to effect such foreclosures, which would be the proba ble consequence of denying to mortgagees the right to purchase, might be productive of greater oppression to mortgagors than could result from maintaining that right. Unfortunately, injustice cannot always be prevented by subjecting sales to the direct control of courts, and such control should not be assumed unless experience has demonstrated its necessity. The practice has prevailed in this state from a very early day of allowing mortgagees to become purchasers at sales conducted by them, under powers contained in mortgages of real estate; and that course was sanctioned by a statute passed in 1808, in consequence of a doubt having been expressed in the Court for the Correction of Errors, as to the validity of such purchases. (1 Paige, 73; 1 Caines Cas., 3–19; 2 R. S., 546, § 7.) Olcott v. Tioga Railroad Company. The long continuance of this practice, and the approbation which it has received from the legislature, afford strong evidence that no great inconvenience or injustice arises from it; and it is not perceived why a similar course, in sales under mortgages of chattels, would be attended with greater danger. It is unnecessary, however, in the present case, to decide this question, as there are other grounds upon which the purchase by Ketchum must be sustained. A purchase of trust property by a trustee at public sale, has always been held valid at law, and is voidable only and not void in equity. It is voidable only at the election of the persons whose interests are affected by the purchase. (Jackson v. Van Dalfson, 5 Johns., 47; Jackson v. Walsh, 14 id., 207; Wilson v. Troup, 2 Cow., 196-238; Mackintosh v. Barber, 8 Eng. C. L., 1st ed., 247; Campbell v. Walker, 5 Ves., 678, and note a, Sumner's ed.; Whichcote v. Lawrence, 3 Ves., 740, note a.) The defendants here are not competent to make that election. The mortgagor (The Arbon Coal Company) is the party most directly interested in the question, and the validity of the sale cannot be impeached without its consent, or at least without giving it an opportunity to be heard. (Davoue v. Fanning, 2 Johns. Ch., 267, 268; Munro v. Allaire, 2 Caines Cas., 194; Whelpdale v. Cookson, 1 Ves., Sen., 9; S. C., 5 Ves., 682; Harrington v. Brown, 5 Pick., 519.) The proper parties not being before the court, the question which it was the design of the defendants, by the evidence offered, to present, could not be considered, and the evidence was properly rejected. Possibly, the delay which had occurred since the sale would, of itself, as was claimed by the plaintiff's counsel, have justified the exclusion of the evidence (Hawley v. Cramer, 4 Cow., 718-743); but there are equitable considerations on the other side bearing upon that question, and I express no opinion upon it, the other ground being entirely sufficient to justify the decision of the referee. The judgment of the Supreme Court in both cases should be affirmed. All the judges concurring, Judgment affirmed. Thompson v. Van Vechten. 27 568 126 192 127 60 27 568 136 322 27 568 161 505 THOMPSON V. VAN VECHTEN et al. A chattel mortgage is extinguished by payment made, with the mortgagor's money, by one who purchased the chattel at sheriff's sale to aid the debtor in defrauding his creditors. Though the purchaser bought on his own credit, an assignment to him of the mortgage is ineffectual to preserve its lien against subsequent existing incumbrances even for moneys paid out by him to complete the purchase and protect his title to the chattel. A precedent debt does not qualify the mortgagee of a chattel as one in good faith, under ch. 279 of 1883, so as to entitle him to question a prior mortgage for a default in re-filing it. A mortgage not filed, of a chattel not delivered, is void as to a creditor at large whose claim accrues while the default in filing continues, though such creditor is not in a position to raise the question until he has obtained judgment or process against the property. The right to a preference over the unfiled mortgage attaches itself to the debt, and accompanies it when transferred by the negotiation of commercial paper. Though a mortgagee cannot avail himself of the omission to refile unless he became such during the continuance of the default, it is otherwise of a general creditor, who may take advantage of such omission though his right accrued previous to the default. A statement held sufficient to support a judgment by confession, that "the indebtedness arose on the sale and conveyance by the plaintiff to the defendant of his interest" in certain partnership property, though it did not show how the plaintiff was connected with the firm, or what was his interest, or, otherwise than by the words quoted, that the sum confessed was for the price of the interest sold. Any party having a lien on a chattel may avoid for usury a mortgage claiming priority. APPEAL from a judgment of the Superior Court of the city of New York. The plaintiff was the holder of a chattel mort. gage upon the steam vessel Alida, which ordinarily ran on the Hudson river between Kingston and New York, executed by John Van Vechten, the 21st day of March, 1855, to secure the due payment, by the mortgagor, of certain promissory notes, amounting to $16,000, which had been before then made by |