Foster v. Perkins

May, J. At the time of the attachment under which the defendant claims, the title of the plaintiffs to the bark in controversy depended upon two mortgages from Gilbert Balkam to them, duly executed and recorded in the town of Robbins-ton, where the mortgager resided. The first was dated July 26, and the other Dec. 9, 1854, and both were given to secure large sums of money advanced, and to be advanced by the plaintiffs, and wore upon the vessel then described as upon the stocks in Robbinston. No fraud is suggested in these transactions. The title of the plaintiffs must, therefore, be deemed valid, as against the attachment, unless some of the objections urged in defence can be sustained. It is said, in the first place, that it does not appear that these mortgages had been delivered or assented to by the plaintiffs prior to the attachment. That such delivery was essential to perfect the title in the plaintiffs, cannot be denied. It is said, by Shaw, C. J., in Davis v. Mills, 18 Pick. 394, that “ proof of the execution and registry of the mortgage is prima facie evidence of title in the plaintiff.” Its delivery to the register, and its subsequent possession by the grantee, is evidence of a delivery to him. Maynard v. Maynard & al. 10 Mass. 456. In the cases cited by the counsel in defence, upon this point, there was more or less in the facts proved, tending to control the inference arising from registry and subsequent possession. In the case at bar no such facts appear. — 174 — The possession of the mortgages is therefore sufficient evidence of delivery. Their date is prima facie evidence that they were then delivered. Sweetser v. Lowell & al., 33 Maine, 446. It is also contended that the registry of a mortgage of personal property under our statutes is not equivalent to possession of the property by the mortgagees, where they reside out of the State. The statute makes no distinction between citizen mortgagees, and those who are not. No case is cited to sustain any such distinction. Mere inconvenience, however great, in making a tender before the mortgaged property can be attached, as now required by the Revised Statutes, c. 117, § 38, will not authorize the Court to disregard any of the plain provisions of the statute, or their effect. We must declare the law as it is. If inconveniences exist, it is for the Legislature to remove them, and not for the Court. Again, it is urged that the first two mortgages, under which the plaintiffs claim, are void as against attaching creditors, whom the defendant represents, because they were not recorded in the office of the collector of the customs, as required by the statute of the United States, passed July 29, 1850, vol. 9, c. 27, § 1. By this statute it is provided, “that no bill of sale, mortgage, hypothecation, or conveyance of any vessel, or part of any vessel, shall be valid against any person other than the grantor, or mortgager, his heirs and devisees, and persons having actual notice thereof; unless such bill of sale, mortgage, hypothecation, or conveyance be recorded in the office of the collector of the customs where such vessel is registered or enrolled.” The section contains a proviso which it is unnecessary to recite. This statute clearly, by its terms, applies only to vessels which have been registered or enrolled at the time when the instrument or mortgage is made; or to cases where the title to the vessel, which is set up against such instrument or mortgage, was derived after such registry or enrollment of the vessel and before the required record had been made. In the case at bar, the vessel had been neither registered — 175 — nor enrolled, when the attachment was made, but was probably lying at the "wharf in the river, having been launched only eight days before. Under such circumstances, we cannot doubt that she was subject to our laws, and that the state of the title at that time is properly to be determined in view of our statute relating to mortgages of personal estate. R. S., c. 125, § 32, as amended in 1852, c. 262. As to what would be the effect of the federal statute, before cited, upon the rights of attaching creditors, in the case of a mortgage not recorded as it requires, the mortgage or attachment being made after the registry or enrollment of the vessel, we intend to give no opinion. It is also said, that the first two mortgages, held by the plaintiffs, became merged in the mortgage of Dec. 27, 1854, given to the plaintiffs, by the same mortgager, upon the same vessel, then afloat, and for the purpose of securing the same debt. Assuming, without intending to admit that such is the fact, that the previous mortgages were merged or extinguished in the last, and that the plaintiffs had waived their rights under them, still, it is not perceived how the attachment made by the defendant, five days before, could be made effectual thereby. At that time there had been no merger, and the vessel being then subject to the first two mortgages could not, as against the mortgagees, under our Revised Statutes, c. 117, § § 38 & 40, as amended by the statute of 1842, c. 31, § 12, be legally attached upon mesne process, without first paying, or tendering, the full amount of the mortgage debt then due. Smith v. Smith, 24 Maine, 555. The attachment being void as against the plaintiffs, it could give to the defendant no right to hold or retain the bark, as against them. Morton’s adm’r v. Hodgdon, 32 Maine, 127. Another, and perhaps the strongest objection to the maintenance of this action, is, that the plaintiffs, even if they had the right of property, had not the right of immediate possession at the time when the suit was commenced. The validity of this objection rests upon the correctness of both the law and the fact which it assumes. The law is undoubtedly cor — 176 — rect. It has been so often decided to be so, that authorities are unnecessary to sustain it. But the fact, as to the right of immediate possession, is more difficult to determine. Whether the plaintiffs possessed such a right, depends upon the construction and effect of the mortgage of Dec. 27, 1854. That mortgagees of both real and personal estate, in all cases where there is no language in the mortgage, and no other agreement to restrain or control it, possess the right, is well settled. Sibley v. Cushman, 29 Maine, 429; Welch v. Whittemore & al. 25 Maine, 86; Wales v. Mellen, 1 Gray, 512. But an agreement that the mortgager shall retain the possession of the mortgaged property, either absolutely or conditionally, may be, and often is, to be inferred from the stipulations which the mortgage contains. The first two mortgages contain no such agreement, express or implied. By the third or last mortgage, it is in substance provided in the condition, that the mortgager shall pay or cause to be paid to the plaintiffs, the full and just sum of eighteen thousand dollars within or at the expiration of sixty days from its date; that he shall keep the said bark in the port of New York until the mortgage is satisfied; and that, in case of a sale of the bark before the expiration of the sixty days, the mortgage shall be paid before any transfer shall be made. If the money is paid by the time specified, then the mortgage is to be void; but if default shall be made in this or in the fulfillment of the other aforementioned conditions, then the mortgagees are authorized and empowered, at any time and place thereafter, to enter upon and take possession of the bark, and make a sale thereof; and for that purpose, they are, by a subsequent clause in the mortgage, constituted and appointed to be the true and lawful attorneys of the mortgager. From these provisions, the right of the mortgager to retain the possession of the vessel, until a breach of some of the conditions, is fairly to be implied; but it is for no other purpose than that of keeping the vessel in the port of New York, and making a sale of her, for the payment of the mortgage debt. Such a sale is manifestly the great design of the parties in the mortgage. It does — 177 — not seem to have been contemplated that either party should use the vessel until the mortgage should be paid, except so far as might be necessary to place her in New York as a market for sale. This, the mortgager was bound to do, without any unreasonable delay. Under such circumstances, we do not think that the right of possession retained by the mortgager was of such a nature as to deprive the plaintiffs of the right to take actual possession as against a wrongdoer. The mortgager may properly be regarded as the agent of the mortgagees, and his possession was a qualified possession for their benefit. This case is unlike those of Wheeler v. Train, 3 Pick. 255, Ingraham v. Martin, 15 Maine, 373, and Pierce v. Stevens, 30 Maine, 184, cited in defence. In all these, and many more that might have been cited, it will be found that there was a beneficial use of the property secured to the lessee, or mortgager, of which they could not lawfully be deprived. This case is substantially like that of Melody v. Chandler, 12 Maine, 282, where the plaintiff claimed under a mortgage bill of sale, which contained a stipulation that the mortgager should retain the possession of the goods mortgaged, for the purpose of making a sale of them, and in which it was held that the possession of the mortgager was the possession of the mortgagee. The only distinction perceived between the two cases, is, that the latter is an action of trover, while this is replevin; and in the case cited, the mortgage contained a provision that the proceeds arising from the sale should be appropriated to the payment of the mortgage debt, whilst in this, the mortgage is without such a stipulation, and yet it cannot well be doubted that the object of the sale contemplated was for that purpose. We do not think that these circumstances change the law of the case, or that the plaintiff’s right of possession, in a case where the property is withheld from him by a trespasser, is affected thereby. At the time when the last mortgage was made, the vessel was afloat, and in the hands of the defendant, as it may reasonably be inferred from the two facts, that he had taken possession of her five days before, under color of an attach — 178 — ment, as the property of the mortgager, and that she had not then been replevied. The mortgager, therefore, had not been in possession of her after the mortgage was executed, and before she was replevied. This possession by the officer, permitted by the mortgager, effectually deprived him of all power to fulfill .the conditions of the mortgage as he had agreed. The case shows an entire want of diligence on his part to obtain the possession during the time which elapsed after the mortgage was made, and before the inception of this suit. Such possession, by the defendant, and the want of due diligence, we think, amount to a breach of that condition in the mortgage, which required the mortgager to keep the bark in the port of New York; and from these facts we may properly infer an abandonment on his part of all intention to perform it. This, by the express provisions of the mortgage, restored the plaintiffs to the right of immediate possession, and therefore authorizes the maintenance of this suit. Whitney v. Lowell, 33 Maine, 318. Defendant defaulted. Tenney, C. J., and Appleton, J., concurred in the result. Hathaway and Goodenow, J. J;, concurred.