Copeland v. Barnes

C. Allen, J. In this case it appears that Wright bought certain personal property, took a bill of sale, borrowed money [390] of the defendant, who was his mother, to pay the price, gave a'note to her for the money, and delivered to her as security the bill of sale running to himself, she supposing it was a good security,—indeed, apparently supposing it was a mortgage. After-wards, on December 21, 1886, upon learning that it was not a mortgage, she demanded and received a mortgage ; and on February 20,1887, took possession of the property. But these later transactions Were both within six months before the commencement of the proceedings in insolvency. The delivery of the bill of sale did not constitute a mortgage, even though supposed by both parties to be such. A bill of sale made for security, even though running directly to the person to be secured, and though accompanied by delivery of the goods, is at most only a pledge, and not a mortgage. Shaw v. Silloway, 145 Mass. 503, 505. Thompson v. Dolliver, 132 Mass. 103. If no delivei’y of the goods is made, it can be no more than an agreement for a pledge or mortgage. Such agreement, made at the time when a debt is contracted, will not avail to protect the actual pledge or transfer of the property, when made, from the operation of the statute against preferences by an insolvent debtor. The statute makes no exception in favor of securities given in pursuance of a previous agreement, but declares all transfers and conveyances void, if _ made within six months, and under the circumstances therein stated. Pub. Sts. c. 157, § 98. Forbes v. Howe, 102 Mass. 427,435. Simpson v. Carleton, 1 Allen, 109,120. Blodgett v. Hildreth, 11 Cush. 311. Certainly the delivery to the defendant of the bill of sale running to Wright can have no greater effect than the execution and delivery of a bill of sale directly to the defendant. The facts were allowed to be put in evidence upon the question whether the defendant, at the time of taking her mortgage, had reasonable cause to believe that Wright was insolvent or in contemplation of insolvency, and that the conveyance was made in fraud of the insolvent laws; and, from the verdict of the jury, it must now be assumed that she then had such reasonable cause of belief. Exceptions overruled.