Stirk v. Hamilton

Walton, J. This is an action of trover against an officer for property attached on a writ. At a trial in the court below, the jury returned a verdict for the defendant, and the case is before the law court on motion and exceptions by the plaintiff. The property attached was a part of the outfit of a circus company, and the plaintiff claimed title to it by virtue of two mortgages, one made in Boston and the other in Biddeford. The validity of the mortgages was denied on the ground that neither of them had been legally recorded. The mortgage made in Biddeford had been there recorded ; but the defendant denied that the property was in Biddeford at the time the mortgage ivas made. The company had exhibited at Groat Falls on Friday and Saturday, and the property attached arrived at the station in Biddeford between three and four o’clock in the afternoon of the following Monday, and was immediately transported by teams into Saco, where the company exhibited that evening. The mortgage was made the same day, but it was made in the forenoon, and the properly did not arrive at the station till after three o’clock in the afternoon. Under our law, -when all the mortgagors reside without the State, a mortgage of personal property will not be valid against any other person than the parties thereto, unless possession of the property is delivered to and retained by the mortgagee, or the mortgage is recorded in the city, town, or plantation, "where the property is when the mortgage is made.” B. S.,ch. 91, § 1. And,- there being no evidence that, when the Biddeford mortgage was made, the mortgagor resided within the state, or that the property had been delivered to and retained by the mort [529] gagoe, or that the property was in Biddeford when the mortgage was made, the presiding justice ruled the mortgage out of the case altogether, and instructed the jury to disregard it. The plaintiff complains of this ruling on the ground that, whether or not the property was in Biddeford at the time the mortgage was made, was a question of fact for the jury, and should have been submitted to them. We think the ruling was correct. The burden of proof was on the plaintiff to show that the property was in Biddeford when the mortgage was made. This he failed to do. A careful examination of the evidence shows that beyond a doubt the property was not in Biddeford when the mortgage was made. Probably it was not then within the limits of this State. It would, therefore, have been an idle ceremony to submit the question of fact to the jury; for if they had returned a verdict for the plaintiff based on a finding that the mortgage property was in Biddeford when the mortgage was made, it would have been the duty of the court to set the verdict aside. We now come to a consideration of the mortgage made in Boston. Of course the validity of that mortgage must be determined by the lex loci contractu«. And it appears that by the law of Massachusetts, a mortgage of personal property must be recorded not only in the city or town where the mortgagor resides when the mortgage is made, but also ':on the records of the city or town in which he then principally transacts his business, or follows his trade or calling,” and if not so recorded within fifteen days (unless the property has been delivered to and retained by the mortgagee) the mortgage will not be valid against any person other than the parties thereto. And it not appearing that the mortgage made in Boston had been recorded in any other city or town, or that the mortgaged property had been delivered to or retained by the mortgagee, the presiding justice instructed the jury that the burden of proof was on the plaintiff to satisfy them that, at the time of making the mortgage, the mortgagor not only resided in Boston, but that Boston was the place where he then principally transacted his business, or [530] followed his trade or calling; that if the plaintiff had not so satisfied them, then, as against the attaching creditor, the mortgage could not be regarded as valid. We fail to discover anything erroneous in these instructions. See Public Laws of Massachusetts, 1882, chap. 192, § § 1, 2, and 3, put into the case by the defendant’s counsel, and referred to by the presiding justice in his charge to the jury. We think the exceptions must be overruled. And we do not think the motion to have the verdict set aside as against the weight of evidence can be sustained. In fact we do not see how upon the evidence the verdict could have been otherwise. Motion and exceptions overruled. Peters, C. J., Virgin, Libbey, Haskell and Wi-iitehouse, JJ., concurred.