Oxnard v. Blake

The opinion of the Court was drawn up by Hathaway, J. Roxana Jordan mortgaged the replevied merchandize to the plaintiff, by his request, to secure her debt to him, and he took possession of it under the mortgage, which was duly recorded. Although Mrs. Jordan also made a mortgage of the same merchandize to the defendant, and had it recorded at the same time with the mortgage and record thereof to the plaintiff, yet the defendant had no knowledge of it till after the mortgage to the plaintiff had been made, as he requested, and recorded and “approved” by him, which was equivalent to an actual delivery of the mortgage by the mortgager to the plaintiff. Hedge v. Drew, 12 Pick. 141. A deed takes effect from its delivery, and Mrs. Jordan had no legal right to take the plaintiff’s mortgage from the registry, after it had been approved and assented to by him, for it was his property. The case finds no privity between the plaintiff and the defendant, nor any authority in the plaintiff to assent to the [606] mortgage of Mrs. Jordan to the defendant, nor any knowledge of the plaintiff that the defendant would assent to it. The mere making of the mortgage by Mrs. Jordan to the defendant, and causing it to be recorded without his assent or knowledge, did not amount to a delivery of it to him, so as to enable him, by his subsequent assent to it, to defeat or impair the title to the merchandize which had been previously acquired by the plaintiff. Maynard v. Maynard, 10 Mass. 456; Harrison v. Phillips Academy, 12 Mass. 461; Dole v. Bodman, 3 Met. 139, cited in argument. Defendant defaulted. . Tenney, C. J., Rice, Appleton, Cutting, and Goodenow, J. J., concurred.