Clark v. Tarbell

• Decision Date: 11 August 1876
• Citation: 57 N.H. 328
• Parties: Clark v. Tarbell.
• Court: New Hampshire Supreme Court

57 N.H. 328

Clark v. Tarbell.

Supreme Court of New Hampshire

August 11, 1876

Chattel mortgage---Want of affidavit and record.

Although the parties to a chattel mortgage neglect to make and subscribe the affidavit required by Gen. Stats., ch. 123 sec. 6, and although the mortgage is not recorded, it is nevertheless a valid mortgage as against an attaching creditor, provided possession of the mortgaged property be taken by the mortgagee

FROM HILLSBOROUGH CIRCUIT COURT.

ASSUMPSIT on a sheriff's receipt, by Moses Clark against Joel H Tarbell and John H. Tripp. Plea, the general issue, with a brief statement, setting out, among other grounds of defence that the property at the time it was attached by the plaintiff was subject to a mortgage to one Levi Keese, and to another mortgage to Levi Keese, one Abel E. Conant, and the defendant, Tripp; and that the defendants, after receipting for the property, restored it to the mortgagees with the consent of Jacob D. Putnam, the mortgagor and defendant in the original suits.

The plaintiff introduced evidence tending to show that the property was attached by him in four suits against Putnam; that judgment having been recovered by the plaintiffs, they placed their executions in his hands to levy on the property attached; and that he seasonably demanded the same of the defendants.

The defendants introduced two mortgages of real estate from Putnam, one to Keese, and the other to Keese, Tripp, and Conant, in which was also included the personal property which is the subject of controversy in this suit.

Neither of the mortgages was sworn to in accordance with the provisions of the General Statutes in relation to personal mortgages, nor was either of them at the time of the attachment recorded in the

town of Lyndeborough, where the property described therein was situated at the time of the attachment. The defendants then offered to show that the property mentioned in the receipt was at the time of the attachment in the possession of the mortgagees by virtue of said mortgages, and that it was subsequently sold by them, and the proceeds applied in satisfaction of the mortgage debts; but the court ruled that the mortgages were invalid as against the attachment, and that possession under them could not avail as against the attaching creditors, to which the defendants excepted. The court directed a verdict for the plaintiff for the amount of the receipt, judgment to be rendered thereon for the amount thereof, or for the amount due on the judgments in the suits in which the property was attached, or to be set aside and a new trial granted, as the court shall be of opinion on the foregoing facts.

The questions of law arising on the foregoing case were transferred to this court by STANLEY, J., C. C.

Stevens & Parker and Barrett, for the defendants. A. W. Sawyer and Burns, for the plaintiff

SMITH J

Certain evidence was offered by the defendants and excluded by the court. But the facts offered must, for the purposes of this case, be considered as proved.

The fact, that the chattels attached were found in the possession of the mortgagees at the time of the attachment, was of itself sufficient notice to the attaching creditors that should have put them upon inquiry to ascertain whether they held it by some title inconsistent with an unincumbered title in the mortgagor. Possession of chattels is presumptive evidence of ownership.

The mortgages to the defendants were defective in two particulars: (1) the affidavit required by sec. 6, ch. 123, Gen. Stats, was lacking, and (2) they had never been recorded. By section 2, the mortgagee is required to retain possession of the mortgaged property, unless the mortgage is duly recorded; and by section 6, the mortgagor and mortgagee are required to make and subscribe an affidavit as to the justness of the debt secured. When the mortgage is given to secure a liability (section 9), the affidavit is to be varied accordingly. Section 12 is in these words: "No such mortgage shall be valid against any person except the mortgagor, his executors and administrators, unless possession is delivered, or the mortgage is sworn to and recorded in the manner herein prescribed."

In Gooding v. Riley, 50 N.H. 400, a mortgage of personal chattels, without the affidavit required by law, was held valid against a subsequent mortgagee having notice that the prior mortgage was made in good faith and for a full consideration. In the able discussion in that case by BELLOWS, C. J., he says "that the statute requisites are equally imperative in the cases of mortgages of real and of personal property; and the provisions, making the conveyances void as to all per-

sons but the grantor and his representatives in case of a failure to comply with the statute requisitions, are equally explicit in the two cases.

"Between the two cases there is this distinction. In respect to real estate, the object of the registry laws is to provide for notice of all conveyances, to protect purchasers and others against secret conveyances; while in the case of mortgages of personal property, the object of requiring the affidavit is to guard against the making of fraudulent or fictitious mortgages to enable the mortgagor to retain the possession of the property and set his creditors at defiance.

"Where the object of the statute is notice simply through the registry, there would be much force in the suggestion that actual personal notice ought to be equivalent to the record; and it has been held that the purpose of the statute was to protect subsequent purchasers and creditors without notice. Montgomery v. Dorion, 6 N.H. 255.

"The verification of the truth and good faith of a mortgage of personal property stands upon a ground somewhat different; and yet it may be said to be designed to protect persons, who have occasion to deal with the mortgagor respecting that property, from false and fictitious incumbrances, and, in the absence of any change of possession, to furnish some evidence that the mortgage was made in good faith. To some extent the change of possession affords such evidence, and the affidavit and record were designed to take the place of it when possession could not conveniently be given."

This case was decided in December, 1870, and, as will be observed, Judge BELLOWS attached great importance to the fact that the affidavit required by the statute was intended to afford those who may deal with the mortgagor some protection from fictitious incumbrances in the absence of any change of possession. He could not then have forgotten the case of Janvrin v. Fogg, 49 N.H. 340, decided in June, 1870, only six months before the decision in Gooding v. Riley. One of the head notes in Janvrin v. Fogg is as follows: "Possession by the mortgagee of personal property mortgaged answers instead of the record of the mortgage. But whether the mortgage be recorded, or possession of the property be taken under it, the affidavit required by statute must be taken and subscribed by both parties thereto."

The only allusion to this point in the lengthy opinion of the court is in these words: "Upon an examination of the several provisions of the statutes, we are satisfied that possession of the mortgaged property will only supply the place of the record of the mortgage; and that the affidavit is required in the one case as well as in the other. The affidavit is made an essential part of the mortgage itself, without which the mortgage is void as to every person but the mortgager"---p. 353.

The consideration of this point was not necessary to the decision of the questions raised in that case. It can be regarded then only as a statement coming from the learned judge who delivered the opinion of the court, and, as such, entitled to the highest respect; but nevertheless it cannot be regarded in the light of an authority.

The history of legislation on this subject is decisive...