Adams v. Lee's Assignee

• Decision Date: 16 March 1888
• Citation: 13 A. 786,64 N.H. 421
• Parties: ADAMS v. LEE'S ASSIGNEE.
• Court: New Hampshire Supreme Court

13 A. 786

64 N.H. 421

ADAMS

v. LEE'S ASSIGNEE.

Supreme Court of New Hampshire. Carroll.

March 16, 1888.

Bill in equity. Pacts found by the court. February 8, 1886, the plaintiff sold to the defendant Lee a lot of pine timber in the town of Moltonborough, with an agreement that the same should remain his property until it was fully paid for. The whole bargain was put in writing, and was recorded in the office of the town clerk of Moltonborough, May 28, 1886. But no affidavit such as is prescribed by section 2, c. 30, Laws 1885, was made or subscribed to the writing. About May 28, 1886, on the application of certain creditors of Lee, the defendant Wiggin was appointed assignee under the insolvency act of 1885, and, in that capacity, Wiggin took possession of the timber in question, and claims to hold it as part of the estate of the insolvent. The plaintiff claims it by virtue of the above contract.

Chase & Streeter and P. Wentworth, for plaintiff. W. L. Foster, for defendant.

SMITH, J. The lien reserved to the plaintiff by force of his contract with Lee is valid unless lost for non-compliance with the requirements of chapter 30, Laws 1885. By the common law of this state a sale and delivery of chattels on condition that the title does not pass until the purchase money is paid or secured, does not vest the title in the vendee. Weeks v. Pike, 60 N. H. 447, and authorities cited. The statute of 1885 (c. 30, §§ 1, 2,) provides that "no lien reserved on personal property sold conditionally, and passing into the hands of the conditional purchaser, shall be valid against attaching creditors or subsequent purchasers without notice, unless the vendor of such property takes a written memorandum, signed by the purchaser, witnessing such lien, and the sum due thereon, and causes it to be recorded in the town clerk's office of the town where the purchaser of such property resides, if he resides in the state; otherwise in the town clerk s office of the town where the vendor resides, within ten days after such property is delivered." The vendor and purchaser are also required to make and subscribe an affidavit that the "memorandum is made for the purpose of witnessing the lien and the sum due thereon as specified in said memorandum, and for no other purpose whatever, and that said lien and the sum due thereon were not created for the purpose of enabling the purchaser to execute said memorandum, but said lien is a just lien, and the sum stated to be due thereon is honestly due thereon, and owing from the purchaser to the vendor."

As between the plaintiff and Lee, and all other persons except those named in section 1, the title did not pass to Lee, nor was the plaintiff's lien lost by his neglect to comply with the terms of the statute. The inquiry, then, is whether the assignee of a conditional purchaser comes within the class of persons excluded by the statute from the operation of the common-law rule as to conditional sales. The assignee of an insolvent debtor is not by virtue of...