Clark v. Williams

• Decision Date: 05 January 1906
• Parties: CLARK v. WILLIAMS et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

190 Mass. 219

76 N.E. 723

CLARK v. WILLIAMS et al.

Supreme Judicial Court of Massachusetts, Worcester.

January 5, 1906

COUNSEL

H. L. Parker, for plaintiff.

Frank Bulkeley Smith, T. H. Gage, Jr., and Frank F. Dresser, for respondents.

OPINION

HAMMOND J.

The defendants' objection that the plaintiff has a plain adequate and complete remedy at law and that therefore equity has not jurisdiction, although made in the amended answer does not appear from the record before us to have been much relied upon at the hearing in the Superior Court. But however that may be jurisdiction in favor of the plaintiff was assumed by that court, and since the defendants did not appeal from the decree, they cannot, upon this the plaintiff's appeal, raise this question of jurisdiction. Cohen v. Nagle (Suffolk, Jan., 1906) 76 N.E. 276. See, also, Haskell v. Merrill, 179 Mass. 120, 60 N.E. 485, and cases cited. At the time of the delivery of the bill of sale by Keyes to the defendants a part of the property therein described was in the possession of the defendants, a part in the possession of Keyes, and the rest in the possession of the Builders' Finish Company, under a lease theretofore made by Keyes and still in force. There has since been no change in the possession of any part of the property. The trial judge 'decided' that the title to the property described in the lease to the Builders' Finish Company, as also that which was in the possession of the defendants at the time the bill of sale was delivered to them passed to the defendants, and that the plaintiff had title to that of which Keyes retained possession, and a decree was made declaring, in substance, that the defendants are entitled to hold and retain under their bill of sale so much of the property therein described as was not retained in the possession of Keyes. The bill of sale, though absolute in form, was given under an oral agreement that it should be held simply as security for the notes held by the defendants against Keyes. At the most, it was only a mortgage. Williams v. Nichols, 121 Mass. 435. Rev. Laws c. 198, § 1, provides for the recording of mortgages of personal property, and that, unless the mortgaged property has been delivered to and retained by the mortgagee, the mortgage shall not be valid against a person other than the parties thereto until it has been recorded as required by the statute. This mortgage was not recorded, and, the mortgage agreement being oral in part, it could not be. Williams v. Nichols, ubi supra. There was no attempt to make any actual or constructive delivery. As to the property then in the hands of the defendants, a delivery was unnecessary. It may be fairly assumed that after the receipt of the bill of sale the defendants held that portion of the property under the agreement. The decree being in favor of the plaintiff, and the defendants not having appealed, no question arises as to the right of the plaintiff to hold the property retained by Keyes.

The real question relates to the property leased to the Builders' Finish Company. Was there any delivery to the defendants of that property? The delivery required by the statute is the same as that required in an absolute sale to pass to the vendee the title as against attaching creditors of the vendor. Wright v. Tetlow, 99 Mass. 397. It is clear that there was no actual delivery. Was there any constructive delivery? It is a familiar principle of law that, when property is in the hands of a third party such as a bailee or a lessee, a delivery can be made by a notice to such party of the sale or mortgage. But in the present case no attempt was made to give such a notice, and neither the lessee nor the plaintiff had any notice or knowledge of the bill of sale until after the appointment of the latter as trustee in bankruptcy of the estate of Keyes. Moreover, Keyes received the rent from the lessee until he was adjudicated a bankrupt. In no way whatever can it be said that there ever has been any actual or constructive delivery to the...