Ufford v. Spaulding
| Decision Date | 26 February 1892 |
| Citation | 156 Mass. 65,30 N.E. 360 |
| Parties | UFFORD v. SPAULDING. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Perkins & Lyman for plaintiff.
G.R Fowler and John Prentiss, for defendant.
The plaintiff's title was under a mortgage of personal property, being a stock of millinery goods, given in New Hampshire by a resident of that state upon property then situated there. The validity of the mortgage, therefore depends on the law of New Hampshire. The mortgage was not recorded, and no possession was taken under it for several months. It is a general rule that laws of other states must be proved as facts, and ordinarily, in a trial by jury, the question must be left to the jury to decide as a fact what the law of another state is, if it becomes material to be determined. This may in some cases prove inconvenient in practice, especially in view of the provision of our statute that the courts shall not charge juries with respect to matters of fact; but such is the established rule in this commonwealth. Pub.St. c. 169, §§ 72, 73; Holman v. King, 7 Metc. (Mass.) 384, 388; Ames v. McCamber, 124 Mass. 85. To this rule there is an exception where the evidence which is given of the law of another state consists of a statute or judicial opinion or document. In such case, the construction of such evidence is for the court. Ely v. James, 123 Mass. 37; Hackett v. Potter, 135 Mass. 349; Kline v. Baker, 99 Mass. 252. Whether this exception includes cases where the law is to be gathered from more than one statute or judicial decision, or from a statute construed in the light of such decisions, need not now be considered. In the present case, three kinds of evidence were introduced, which might be considered in determining what the law of New Hampshire was, namely, chapter 137 of the General Laws of New Hampshire, seven judicial decisions, and the auditor's report; and, on an examination of all these, we are forced to the conclusion that the law of New Hampshire applicable to this case was not for the court, but was a question of fact for the jury. It is rather singular that neither party has referred to any particular section of the statute on which he relies. According to the statement in the bill of exceptions, a whole chapter was put in evidence, with no designation of any particular section which was supposed to be applicable. In the brief for the plaintiff there is no reference to any section relied on; and in the defendant's brief it is expressly stated that the law of New Hampshire depends upon decisions, not on statute. Since neither party relies on the statute, and since no particular section has been referred to, we lay it aside, without considering whether the plaintiff's claim can stand, consistently with any construction there given to section 12; that question not having been touched upon by counsel. In the auditor's supplemental report it is found as a fact that at the time the mortgage was given there was an understanding between the mortgagor and the mortgagee that, upon her (the mortgagor's) removal to Franklin, Mass., The auditor then states the law of New Hampshire as follows: "I find it to be the law of New Hampshire that a mortgage of personal property is invalid against the mortgagor's creditors in that state if a secret trust is created in the mortgagor's favor by an agreement between mortgagor and mortgagee that the mortgagor is to remain in possession and act as absolute owner of the mortgaged property." This is his whole statement of the law. He adds the following findings of facts: "I find that the mortgagor in this case remained in possession and had the right to sell all or a part of the mortgaged property, and acted as the absolute owner of the mortgaged property, by an understanding with the mortgagee equivalent to an agreement, and so continued from the time this mortgage was given until plaintiff took possession in Franklin, October 27, 1888, but that no secret trust in favor of the mortgagor was created or intended." We suppose the auditor must have meant that he found that no secret trust was created, in view of his other finding that the mortgagor was to pay the mortgagee what she could, after paying her business and living expenses. The auditor's statement of the rule of law is expressly limited to the effect of a mortgage against creditors in that state, and has no application to creditors like the defendant who live in Massachusetts; and, moreover, he does not state any rule of law in New Hampshire applicable to the facts which he finds.
The learned chief justice at the...
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