Hodgdon v. Libby

• Decision Date: 12 March 1897
• Parties: HODGDON et al. v. LIBBY. HODGDON v. SAME.
• Court: New Hampshire Supreme Court

43 A. 312

69 N.H. 136

HODGDON et al.

v. LIBBY.

HODGDON

v. SAME.

Supreme Court of New Hampshire. Coos.

March 12, 1897.

Action by Hodgdon & Pickford and by Moses Hodgdon against Jesse P. Libby. Motion for judgment by both parties. Case discharged.

The defendant is assignee of J. A. Hodgdon, who was decreed an insolvent in September, 1895. The plaintiffs claim the goods under mortgages dated February 1, 1895, and April 6, 1895, both of which were duly recorded. October 28, 1895, the defendant took possession of the property, and has held it ever since, claiming it as assignee. The property was described in the second mortgage as "all the stock in trade and fixtures now in my store, situate on the easterly side of Main street, in said Berlin." The defendant objected that the description was insufficient. The mortgage was given to secure the payment of the mortgagor's note, payable to the mortgagee, and to indemnify the mortgagee against loss in consequence of indorsing sundry notes for the mortgagor. The oath was not varied, as required by Pub. St. c. 140, § 9. There was no special agreement in respect to the disposition of the property or its proceeds. The mortgagor continued his trade and business, after the mortgages were executed, the same as before, replenishing the stock as required. He made no distinction between the old and the new stock, and used the proceeds as he saw fit, paying upon the mortgage debts only what he could spare therefrom. This was done with a full knowledge of the mortgagees. The business was so carried on until August 1, 1895, when the stock was attached by creditors, of the insolvent. The goods bought after the execution of the mortgages could be and have been in fact separated from the other goods, with substantial, but not absolute, accuracy. Both parties moved for judgment.

Daley & Goss, for plaintiffs.

Albert S. Twitchell, for subsequent attaching creditors.

PIKE, J. The description of the property mortgaged was sufficient. Morse v. Pike, 15 N. H. 529, 532; Fuller v. Rounceville, 31 N. H. 512, 519; Call v. Gray, 37 N. H. 428; Sum ner v. Blakslee, 59 N. H. 242; Benton v. Benton, 63 N. H. 289, 295. Any description is sufficient from which the property can be identified. Sherman v. Hanno, 66 N. H. 160, 163, 28 Atl. 18. It is immaterial that the oath was not varied. The mortgages were valid as between the parties, and as against subsequent purchasers with notice, and the defendant assignee, without any oath or record. Smith v. Moore, 11 N. H. 55, 63; Gooding v. Riley, 50 N. H. 400, 402; Roberts v. Crawford, 58 N. H. 499, 500; Lovell v. Osgood, 60 N. H. 71, 72; Adams v. Lee, 64 N. H. 421, 13 Atl....