22 A. 391 (Me. 1891), Stirk v. Hamilton

Citation:22 A. 391, 83 Me. 524
Opinion Judge:WALTON, J.
Attorney:Hamilton & Haley, for plaintiff. H. Fairfield, for defendant.
Judge Panel:PETERS, C. J., and VIRGIN, LIBBEY, HASKELL, and WHITEHOUSE, JJ., concurred.
Case Date:June 01, 1891
Court:Supreme Judicial Court of Maine

Page 391

22 A. 391 (Me. 1891)

83 Me. 524




Supreme Judicial Court of Maine.

June 1, 1891

Hamilton & Haley, for plaintiff.

H. Fairfield, for defendant.


This is an action of trover against an officer for property attached on a writ. At a trial in the court below, the jury returned a verdict for the defendant, and the case is before the law court on motion and exceptions by the plaintiff.

The property attached was a part of the outfit of a circus company, and the plaintiff claimed title to it by virtue of two mortgages, one made in Boston and the other in Biddeford. The validity of the mortgages was denied, on the ground that neither of them had been legally recorded.

The mortgage made in Biddeford had been there recorded; but the defendant denied that the property was in Biddeford at the time the mortgage was made. The company had exhibited at Great Falls on Friday and Saturday, and the property attached arrived at the station in Biddeford between 3 and 4 o'clock in the afternoon of the following Monday, and was immediately transported by teams into Saco, where the company exhibited that evening. The mortgage was made the same day, but it was made in the forenoon, and the property did not arrive at the station till after 3 o'clock in the afternoon.

Under our law, when all the mortgagors reside without the state, a mortgage of personal property will not be valid against any other person than the parties thereto, unless possession of the property is delivered to and retained by the mortgagee, or the mortgage is recorded in the city, town, or plantation "where the property is when the mortgage is made." Rev. St. c. 91, § 1.

And there being no evidence that, when the Biddeford mortgage was made, the mortgagor resided within the state, or that the property had been delivered to and retained by the mortgagee, or that the property was in Biddeford when the mortgage was made, the presiding justice ruled the mortgage out of the case altogether, and instructed the jury to disregard it.

The plaintiff complains of this ruling on the ground that whether or not the property was in Biddeford at the time the mortgage was made was a question of fact for the jury, and should have been submitted to them.

We think the ruling was correct. The burden of proof was on the plaintiff to show that the property was in...

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