Griffith v. Douglass

• Decision Date: 31 May 1882
• Citation: 73 Me. 532
• Parties: FANNY GRIFFITH v. WILLIAM DOUGLASS.
• Court: Maine Supreme Court

73 Me. 532

FANNY GRIFFITH v. WILLIAM DOUGLASS.

Supreme Judicial Court of Maine.

May 31, 1882

ON REPORT.

Trespass against an officer.

The case and material facts are stated in the opinion.

David Hammons and Enoch Foster, Jr. for the plaintiff.

R A. Frye, and Black and Holt, for the defendant.

APPLETON C. J.

This is an action of trespass against the sheriff for the taking and carrying away by his deputy of certain goods and chattles to which the plaintiff claims title. The defendant justifies their seizure under writs in favor of Orange C. Littlefield and others against Joseph F. Barden, whose property he alleges them to be.

Joseph F. Barden and wife then residing in Lewiston but intending soon to remove to Bethel and being indebted to the plaintiff on the twentieth of May, 1873, executed a mortgage to secure such indebtedness of " the following described property viz: all the furniture and furnishings now owned by us or to be owned by us to be used and kept at the Chandler house, so called, at Bethel, in the county of Oxford, intending hereby to convey all furniture and furnishings of every description, consistings of beds, bedding, tables, chairs, carpets, stoves, & c., & c., now owned or to be owned by us, … provided also that it shall and may be lawful for said Joseph and Georgiana Barden (the wife) to continue in the possession of said property without denial or interruption by said Griffith until condition broken."

The mortgage was recorded in Bethel, where the parties then resided, on the twenty-seventh of September, 1878, and in Lewiston on the twenty-eighth of September, 1878. The attachments, which constitute the trespass complained of, were made on the thirtieth of the same September.

The suit is for goods purchased by the mortgagors after the date of the mortgage. The plaintiff is an aunt of Mrs. Barden, whose husband kept the Chandler house, and boarded there. As articles were purchased for the house Mr. Barden would deliver the same to the plaintiff under the mortgage as security. The delivery being thus made, he remained in the use and control of the same. The question presented for determination is whether the plaintiff has a good title as to the goods purchased subsequently to the mortgage as against attaching creditors.

By R. S., c. 91, § 1, " no mortgage of personal property, to secure payment of more than thirty dollars, shall be valid against any other person than the parties thereto, unless possession of such property is delivered to and retained by the mortgagee or the mortgage is recorded by the clerk of the town or plantation, organized for any purpose, in which the mortgagor resides."

The object to be attained by requiring the recording of mortgages of personal property is the same as that in providing for the registration of mortgages of real estate. The same general principles are alike applicable in each case. The design is to give notice to the public of all existing incumbrances upon real or personal estate by mortgage. Hence it is obvious that the property mortgaged, whether real or personal, the person mortgaging, to whom the mortgage is made and the debt or claim to be secured should be fully disclosed and made apparent of record. It would necessarily follow that the mortgage could only embrace what was in esse, what could then be taken possession of and the possession retained,--what then could be described as existing and what in case of litigation could be identified as the same as that described and that what was not in esse and not owned by the mortgagor could not be mortgaged, because there was nothing the mortgagor could deliver or the mortgagee receive and to which the mortgage could attach. If the mortgage is held to cover what was mortgaged and what was not mortgaged because not in esse and not then owned by the mortgagor, then the notice to the public, which was the primary object of the statute, conveys no trustworthy or reliable information. The mortgage may cover whatever is capable of being mortgaged, not at its date, but whatever the mortgagor might at any subsequent time acquire.

The rights of parties are to be determined by the statute. To be protected the mortgagee must take delivery and retain possession of the mortgaged property or have the mortgage recorded, otherwise his claim will not be " valid against any other person than the parties thereto." It is not enough that there be delivery but there must be retention of the property mortgaged. But there can neither be delivery nor retention of such property unless the mortgagor has the same to deliver. Delivery by the mortgagor and retention by the mortgagee of the property mortgaged are the statutory equivalents of recordation. Whatever delivery and retention of possession will enable the mortgagee to hold will be equally held by the recorded mortgage. But what cannot be delivered and retained cannot be recorded as what is to be mortgaged. The rights of the parties are statutory. The statute thus making the one the equivalent of the other, the record is valid only to protect goods which at the giving of the mortgage could be delivered and retained. Consequently the mortgage cannot be held to secure after purchased goods, whatever may be its language.

Such is the uniform and unvarying decisions of courts of common law. In Head v. Goodwin, 37 Me. 181, it was decided that a grant of goods which did not then belong to the grantor was void. In Chapin v Cram, 40 Me. 561, the mortgage provides " that all drugs, medicines, wares, merchandise and fixtures of every description which may be hereafter purchased to replace any of those then in the store, shall be held for the payment of the sums hereafter named, in the same manner as those now in the store, as also all additions to said stock." " It is quite clear" observes TENNEY, J., in delivering the opinion of the court, " that the additions to said stock obtained by the mortgagor, after the execution of the mortgage to the defendant, without any further act would confer no rights therein. Lunn v. Thornton, 1 Man. Gran. and Scott, 383; Jones v. Richardson, 10 Met. 481; Head v. Goodwin, 37 Me. 181. To purchase such additions to the stock, the mortgage constituted no agency in the mortgagor." That that is the rule at common law is conceded in Morrill v. Noyes, 56 Me. 458, and in Emerson v. E. & N. A. Railway, 67 Me. 391, while as between the parties to the mortgage, the right of the mortgagee to after purchased goods would be upheld. Allen v. Goodnow, 71 Me. 420.

The general current of authority is in accord with views above expressed. It was held in Jones v. Richardson, 10 Met. 481, that a grant of goods which are not in existence or which do not belong to the grantor at the time of executing the deed, is void, unless the grantor ratify the act by some new act done by him with that view, after he has acquired property therein. In Barnard Eaton, 2 Cush 295, by the terms of the mortgage, the mortgagor was allowed to sell the goods mortgaged, others of equal value being substituted therefor, it was held that the mortgage could not apply to goods intended to replace those which were sold. " A mortgage," remarks SHAW, C. J., " is an executed contract; a present transfer of title, although conditional and defeasible, it can only therefore bind and affect property existing and capable of being identified at the time it is made and whatever may be the agreement of parties, it cannot affect property afterwards to be acquired by the mortgagor." In Codman v. Freeman, 3 Cush. 306, it was decided that a stipulation in a mortgage of personal property, that after acquired property should be subject to such mortgage, does not bind property subsequently purchased. These views were re-affirmed in Chesley v. Josselyn, 7 Gray 489; and Moody v. Wright, 13 Met. 17; and in Chace v. Denny, 130 Mass. 566. In Williams v. Briggs, 11 R. I. 476, it was held in an elaborate opinion by DURFEE, C. J., that at common law a mortgage of subsequently acquired property would transfer no title to the same. In Ranlett v. Blodgett, 17 N.H. 305, referring to the subject under consideration, PARKER, C. J., says: " If this doctrine were admitted, a mortgage of personal property would be like a kaleidoscope, in that the forms represented would change at every turn; but, unlike that instrument, in that the materials would not remain the same." In Gardner v. McEwen, 19 N.Y. 123, it was decided that a mortgage of all the goods of a specified description then in a store, or that thereafter might be brought there, though void as to the latter, might be good as to the rest. In Hamilton v. Rogers, 8 Md. 301, it was held that a mortgage of goods in a store, " together with all the renewals and substitutions for the same in any part or parts thereof," did not convey subsequently ...