¶1It was conceded upon the argument that the referee erred, in admitting Tweed and Mason as witnesses for the defendant, within the recent decision óf. the Court of Appeals. Tweed and Mason being the indemnitors to the -sheriff, the suit was defended for their immediate benefit.
¶2A question arises in this'case as to the refiling of a copy of one of the mortgages on the goods in question, which we were requested in the arguement to decide. The copy of the mortgage was duly filed and the statement was duly endorsed thereon, excepting that an error was made both, in the copy and in the statement, in stating the amount secured by the mortgage and the amount due thereon to be one hundred dollars more than it was. It was shown that such error was the mistake of the copyist, and was innocent and without fraudulent intent, and the referee so found.
¶3The objection to the admission of the evidence to show that the mistake was that of the copyist, was, I think, unavailing. As between the mortgagee and the sheriff-on a question of fraudulent intent, such testimony is admissible. (Fuller v. Acker, 1 Hill 473.)
¶4There is more difficulty however in regard to the sufficiency of the copy filed with the register and of the statement as to the amount due.
¶5The statute is positive in requiring a true copy to be filed within thirty days pending the expiration of one year from the filing of it, with a statement exhibiting the interest of the mortgagees in the property claimed therein, and in default thereof declares that such mortgage shall -cease to be valid against creditors. The validity of the mortgage does not depend upon any fraudu*503lent intent but upon the act of filing a true copy with the' statement annexed thereto. (Thompson v. Blanchard, 4 Coms. 303.)
¶6If an erroneous copy can be received as sufficient, then the whole force of the statute is destroyed, because it makes the validity of the mortgage to depend not on filing the true copy, but on the proof that no fraud was intended or harm done. The very evil which the statute was intended to prevent would be furthered if the filing of a mortgage for a greater sum than was really due could be deemed a compliance with its provisions.
¶7A question somewhat similar in the principles governing it was decided in this court in May term, 1845, Larbeg v. Soule and others. In that case a duplicate original mortgage was: filed as a copy at the expiration of the year without the statement of the mortgagee’s interest. It appeared to me in that case that there was another ground upon which the case should have been decided, which would render such error immaterial.. If the mortgage had became" due and payment had not been-made by the mortgagor, his interest in the property mortgaged had terminated and the title had vested in the mortgagee. There Vas no equity of redemption remaining on which the sheriff could levy, and if no title was in the mortgagor, filing of the copy was unnecessary. In other words, that it is only necessary to file a copy of the mortgage while the forfeiture by. new payment has not taken place. That the interest of the mortgagor is not subject to a levy after the forfeiture is held-in 8 Johns. R. 96, and distinctly recognized as law by SenatorVerplanck in Smith v. Acker, 23 Wend. R. 668. See Bailey v. Burton, 8 Wend. 339. And in Dane v. Mallory, 16 Barb. S. C. R. p. 50, it is also said that the mortgagee has an absolute interest, in the thing mortgaged, and that it can be levied on and sold as his property. If the copy of the mortgage must be filed an-, nually to confirm the title of the mortgagee, after his title has become perfect by forfeiture, it would be necessary to continue such filing annually after sale to confirm the title of a purchaser under it. In the case in this court above referred to, my breth*504ren differed with me on this question, and held that the mortgage was not valid although after forfeiture, for want of a proper statement being filed at the time of the second filing.
¶8It does not appear whether the mortgage in this case was due or not before the execution was issued, and these remarks may not be applicable to it. I have referred to this case in order that the former adjudication of this court on the question may be known to the parties.
¶9I concur in the opinion of the first judge, that where there has been no forfeiture on the part of the mortgagor by non-payment of the mortgage debt within the period limited by the condition of the mortgage, the statute is imperative and unrelaxing in its requirement that a true copy shall be filed before the expiration of the term of one year from the filing of the original, and that non-compliance cannot be excused so as to obviate the effect thereof declared by the statute, by proving that the failure was a mere clerical error. This excuse is no better than proof that the failure arose from the forgetfulness or neglect of the clerk employed to bear the copy to the proper office, or from an honest mistake, by filing the copy in the wrong office, or other unintentional failure to comply with the statute. The clerical error in the copy filed, however, must, I think, be in some material particulars, and not in such as have no effect upon the nature or effect of the instrument, or the rights of the parties under it. The accidental omission in the copy of words not affecting the sense, or of words which the intelligent reader must readily supply, ought no more to impair the effect of filing the copy, than the omission to make the copy with the same capital letters, or to use figures invariably instead of words, if figures only are employed in the original, or the like immaterial deviations.
¶10But the error of inserting a widely different sum in the copy as the mortgage debt, is not, I think, of this latter description. The statute, in the use of the term “ true copy,” plainly means that the copy shall be at least substantially correct, and no part *505of the mortgage is more plainly matter of substance than the amount of the debt secured.
¶11The design of the legislature was to enable creditors and purchasers to learn the precise condition of the property found in the possession of the mortgagor, and they were not bound, when they found the two papers on file, to speculate upon the question whether what purported to be a copy of a mortgage for $646 19, was in fact intended to be a copy of an original on file for $546 19, or to inquire whether in truth there was not some other original mortgage for $646 19. The probability that they would suspect a mistake is very strong, but to hold that the vitality of the original mortgage was continued upon that ground, would, I think, be a dangerous tampering with the explicit declaration in the statute, that such original “ shall cease to be valid unless a true copy be filed.”
¶12I am, however, not satisfied that even if the mortgage has become due, and the day for payment has passed, the necessity of filing such copy, with the statement required by the act, no longer exists, if the property continues in the possession of the mortgagor. I recognize the rule that the title of the mortgagee becomes absolute by such default of the mortgagor; but it should be observed that the requirement of the statute is not that the statement to be filed with the copy should specify the amount due to the mortgagee, or that he claims as mortgagee, but it is that a statement shall be filed “ exhibiting the interest of the mortgagee in the property thereby claimed by him by virtue thereof.” While the mortgagor is not in default, the proper mode of exhibiting the interest of the mortgagee is by stating the amount unpaid. And after default, I apprehend that the statement should show the default, and the consequent forfeiture, by which it will appear that the title has become absolute.
¶13The object of the statute is to give creditors and purchasers notice of the mortgagee’s claim. Ilis title begins in a mortgage to secure the payment of the sum secured. At the end of the year a part of the sum may have been paid, or the whole sum may have been paid, or by reason of default, the title may have *506become absolute. Of the actual condition of the property-(still found in the mortgagor’s possession, with all the indicia of ownership), the creditor has a right to be informed, and the legislature intended that he should be informed by the prescribed statement, to wit, a statement exhibiting the interest of the mortgagee. I perceive no sufficient reason why his statement that his interest has become absolute, should not as well be deemed within the requirement of the statute, as that his interest has been modified by a partial payment.
¶14If he takes possession on the happening of the forfeiture,, then, indeed, no statement or copy is necessary. The whole condition of things, to which the statute is applicable, is changed. The change of possession takes the case out of the-purview and design of the statute, and out of the range of the-evils against which the statute was intended to guard.
¶15It is probably unnecessary, after having filed such a statement, to renew it at the end of another year, for the purposes of the statute are answered. He is no longer mortgagee, but' owner, and his interest in that respect has been declared and made known to all persons to be affected thereby. But in the first instance he was mortgagee, and nothing else, and if he continues to claim under the mortgage instrument, he is bound, I think, by the statute to make and file the statement showing every change in his interest under that instrument, whether it arise from partial payments or a total default and forfeiture. .
¶16These suggestions of course apply alone to the mortgage to Mason. The original mortgage to Tweed appears to have been in full force when it was foreclosed, the year not having then expired.
¶17In regard to the question also urged upon us, whether these mortgages ought not to be declared fraudulent upon the general ground that no sufficient reason is shown for suffering the property to remain in the possession of the mortgagor, I am satisfied with the finding of the referee, that the mortgages were made in good faith, for a valuable consideration, and without any intent to defraud creditors or purchasers. And where such was in truth the purpose and object of the parties, I cannot *507agree that a creditor may not receive a mortgage and suffer the debtor to retain his goods until he makes default in the payment of the mortgage debt; nor that a "humane delay in requiring immediate payment where the debt is payable on demand, if there was no other motive, warrants us in saying that the mortgage is itself fraudulent. The circumstances may all be laid before a jury or referee, but the question of fraud, in such case, is by the statute expressly made a question for the jury. (2 R. S. [197] § 4.)
¶18We have given our impressions upon these questions, in compliance with the request of counsel^ though not necessary to the decision of the case.
¶19Upon the ground that the indemnitors of the sheriff were improperly admitted as witnesses in his behalf, the judgment was set aside, the referee’s report opened, and the case referred, back, with liberty to either party to produce additional proofs. Costs to abide the event.