Lane v. Lutz. was directed to be served on Husson, who now first appearel as a party to the litigation. On November 1, 1856, the referee submitted his report, in which he allowed Husson's mortgage as a lien on the proceeds of the sale. He, however, refused to charge his commissions, &c., for the sale on Husson's share of the proceeds. The supreme court, at special term (MITCHELL, J.), confirmed the report of the referee on the main question, holding that, although the statute (2 R. S. 136), declared an unfiled chattel mortgage to be void as against creditors, yet the creditor might waive that right, and so act as to be estopped from denying its validity; that in this case, the creditor's act would not estop him, since it was not proved that he was aware that the mortgage was unfiled; and that, if the plaintiff had caused the property to be sold under his execution, the court could have given Husson no relief. Since, however, the plaintiff had chosen the remedy in the nature of a creditor's bill, the court had the undoubted right to appoint a receiver and take the property into its own hands, and grant relief according to its own ideas of the equity of the case. That since the court ordered the receiver to sell the property subject to the liens which existed on it when Lambrecht took it, the claim of Husson must be allowed, inasmuch as the mortgage was a valid lien as long as the property remained in the hands of Lutz & Co. And that the terms of sale and the conversations between the parties, clearly showed, that they were all agreed that all the plaintiff was entitled to was the net proceeds after the payment of the incumbrances, including Husson's mortgage. But as to the claim for commissions, the court held, that as the receiver appeared to have acted both for the plaintiff and the mortgagee, the share of the latter was chargeable with commissions and expenses. The judgment accordingly entered on the referee's report was affirmed by the court at general term, and the plaintiff now appealed to this court. Solomon L. Hull, for plaintiff, appellant;-Insisted that plaintiff acquired a specific lien, by his suit and injunction Lane v. Lutz. (Corning v. White, 2 Paige, 367; Fitch v. Smith, 10 Id. 9; Edmiston v. Lyle, 1 Id. 637; Utica Ins. Co. v. Power, 3 Id. 365; Strong v. Skinner, 4 Barb. 546; Dwight v. Newell, 3 N. Y. 185), which entitled him to avoid an unfiled chattel mortgage. Thompson v. Blanchard, 4 N. Y. 303; Smith v. Acker, 23 Wend. 653; Benedict v. Smith, 10 Paige, 126; Hicks v. Williams, 17 Barb. 523. Plaintiff was not estopped by an admission of law, Brewster v. Striker, 2 N. Y. 19, 41. The consent was no consideration for a promise to pay out of the proceeds. Silvernail v. Cole, 12 Barb. 687; Ván Alsten v. Wimple, Comst. 162; Gould . Armstrong, 2 Hall, 579. Acting under a misapprehension is not an estoppel. Jewitt v. Miller, 10 N. Y. 402; Plumb v. Ins. Co., 18 N. Y. 392. Marshall S. Bidwell, for respondent Husson;-Insisted that the right to payment of the chattel mortgage was res adjudicata. Doty v. Brown, 4 N. Y. 71; Castle v. Noyes, 14 Id. 329. Plaintiff acquired no lien by his creditor's suit, &c., as against Husson. Peck v. Burdett, 1 Paige, 305; Edmiston v. Lyle, 1 Id. 637; Ellingwood v. Stevenson, 4 Sandf. Ch. 366; Hill v. Beebee, 13 N. Y. 556; Mattison v. Baucus, 1 N. Y. 295. Plaintiff "must do equity." 2 Abb. Dig. 105, pl. 954. He was not like a bona fide purchaser. Horton v. Davis, 26 N. Y. 495. WRIGHT, J.-The appeal is by the plaintiff from so much of the judgment as declares Husson to be entitled, as the holder of a chattel mortgage upon the property, to be paid out of the fund arising from a sale of such property under the order of the court. The action was by the plaintiff, a judgment creditor of the defendants Lutz, Doll and Germann, to set aside what was claimed to be a fraudulent transfer of the property by them to the defendant Lambrecht, and to have the same sold, and the proceeds applied to the payment of his judgment. Husson, who held a chattel mortgage on it, for a part of the purchase money (the existence of which mortgage the assignors of the plaintiff had knowledge of, before obtaining a confession of the judgment), was not made a party. The court decided the sale and assignment to Lambrecht to be void, and instead. of simply setting aside the conveyance, and allowing the plain Lane v. Lutz. tiff to issue a new execution, directed a receiver to be appointed to sell the property, subject to the same incumbrances to which it was liable when transferred to Lambrecht. This was the only direction that could rightly have been given. At the time Lambrecht took the property, it was subject to Husson's mortgage, which had been given to Lutz, Doll and Germann, for an unpaid portion of the purchase money. Husson not being a party, his rights could not be affected by any proceeding in the suit; and the court, having set aside the fraudulent Conveyance to Lambrecht, and taken the property into its own. hands, could not equitably make any other disposition of the The only question involved was as to what passed to Lambrecht by the conveyance from Lutz & Co., which was adjudged to be void; and this was, the property which Lutz & Co. held, subject to the Husson mortgage. This mortgage case. was a valid lien as against them when the conveyance was made to Lambrecht; and the plaintiff, while admitting this, did not make Husson a party to the suit, or suggest that his mortgage was invalid, or ask any relief, other than the pretended transfer to Lambrecht might be set aside. All that the receiver could rightly take under the order, or could sell, was the property, subject to Husson's mortgage. The court might have directed the mere title of Lutz, Doll and German to be gold, without giving Husson an opportunity to be heard; but equitable proceeding no court orders a receiver to sell the thing itself, without giving a party claiming title to it, a hearing. The plaintiff acquiesced in the decision appointing a receiver to make sale of the property itself, subject to the incumbrance to which it was liable, when transferred to Lambrecht; making no attempt to alter or modify it, but consenting there to. His attorney, subsequently, in concert with the receiver, prepared notices of the sale of the property, in which it was stated, that if sold in bulk, the sale would be subject to two chattel mortgages (Husson's mortgage being one of them), but if sold in parcels, the sale would be free from incumbrances; and afterward, and on the day of sale (the plaintiff, Husson, and other parties interested in the property, being present), an attempt was twice made to sell in bulk, but no bid being made, it was sold in parcels, and, as the evidence clearly shows, in Lane v. Lutz. pursuance of an understanding and agreement between the plaintiff and Husson, that the mortgage of the latter should be first paid from the proceeds of the sale. Having this agreement with the plaintiff, Husson permitted the sale to be made free from his mortgage, and the articles to be separated, expecting to be first paid; but, in disregard of the agreement, the entire proceeds were brought into court by the receiver. Subsequently a reference was ordered to examine the accounts of the receiver, and to take proof of, and pay liens, if any; a copy of the order and notice of the reference being directed to be served on Husson. At this point of time, Husson first appeared as a party to the litigation, and, very plainly, thus informally drawn in, if not on the plaintiff's own motion, at least by his consent. Up to this time, it seems, all the parties interested seem to have agreed, that it was the net proceeds of the property, after payment of all the incumbrances, including Husson's mortgage, that the plaintiff was entitled to under the decision and judgment of the court, and nothing more. It had been supposed that the whole property of the Manhattanville line would sell for a sufficient sum to meet the incumbrances and pay the plaintiff's judgment; and on this supposition the plaintiff acted, in concert with Husson, up to the time of the sale. In this there was a disappointment, the proceeds thereof being insufficient to meet the liens. Accordingly, on the ref erence, the plaintiff endeavored to avoid them entirely. The objection urged before the referee against considering Husson's mortgage a lien upon the proceeds of the sale, was, tnat such mortgage was not filed at the time the plaintiff's action was commenced. I do not think the objection valid. It was not important, as affecting the rights of the parties, that the mortgage should have been on file when the suit was instituted. As the statute declares, in terms, that an unfiled chattel mortgage shall be void as against the creditors of the mortgagor, it is probable (although the mortgage in this case was but a continuance of a series of mortgages for the unpaid balances of the original purchase money for the property due from Lutz & Co., and the plaintiff had actual notice thereof), that had the plaintiff, on obtaining his judgment against the mortgagors, issued his execution and sold the property then in Lane v. Lutz. the hands of Lambrecht, he could not have been held as a trespasser at the suit of Husson, the mortgagee. But an essentially different course was pursued. Whilst the mortgage was confessedly valid as against the mortgagors without filing, and could have been made so at once as against their creditors, an action to reach the equitable interest of the mortgagees in the property was commenced. Lambrecht was, at the time, in possession of the property as owner, by virtue of a transfer from the mortgagors, and recognizing the Husson mortgage as a valid lien, the only relief prayed for was to set aside the transfer to Lambrecht. All that was attempted to be reached, and indeed all that could be reached, was the interest which Lutz, Doll & Germann had in the property in the hands of Lambrecht; and this interest was their equity of redemption, or right to any surplus beyond the mortgage. To enable the plaintiff to reach the interest of Lutz, Doll & Germann in the property, it was sought to have the transfer to Lambrecht set aside, which was a transfer subject to the mortgage. Procuring this transfer to be set aside did not entitle the plaintiff to reach an interest which Lutz, Doll & Germann never conveyed. As between Lutz & Co. and Husson, there is no pretense that the mortgage can be impeached, and the court did not, and equitably could not (Husson not being a party to the suit) give the plaintiff greater rights than the extent of Lutz, Doll & Germann's interest. This was all that was done, and the plaintiff submitted to a judgment, limited to setting aside the sale to Lambrecht, as to him, and directing, not a sale of Lutz & Co.'s interest in the property, but a sale of the property itself, subject to the same incumbrances to which it was liable when transferred to Lambrecht. The judgment obtained by the plaintiff, under such circumstances, does not entitle him to payment of it in preference to Husson's mortgage. The lien acquired by the filing of the complaint was not a specific lien upon the property in question, but only on the equitable assets of Lutz, Doll & Germann, in the hands of Lambrecht. It extended only to such estate as Lutz, Doll & Germann had in the property, and to that extent and no further, the filing of the complaint operated as an equitable attachment. It could not affect the prior title to or lien of a person not made a party to |