Tobias v. Francis

Per Curiam. The carding machine was not connected with the building in which it stood otherwise than by a band, and might be removed and used in any other similar building ; and situated as it was, it must be regarded as personal property, and as such liable to be taken and sold on execution. The other point in the case is not so clear. The general rule is, that a mortgage of a personal chattel is of no validity against the creditors of the mortgagor, without a delivery of possession to the mortgagee ; but whether this case, under the particular circumstances of it, ought not to be considered an exception to the general rule, is a matter upon which an opinion has been formed after much hesitation and doubt. In the case of Gale vs. Ward, 14 Mass. 352, where the owner of a woo] manufactory sold and conveyed it, with all its appurtenances, and at the same time took from the vendee a mortgage deed of the premises to secure the payment of the purchase money, and the vendee entered and remained in possession, it was held, that the machines for carding wool, in the building, were personal property, and liable to attachment at the suit of the creditors of the vendee, notwithstanding the mortgage. The case cited is exactly in point; and the judge who tried this cause in the court below, though now absent, heard the argument at the last term, and is decidedly of opinion that the doctrine of that case ought to be adopted ; and on the whole, the conclusion is that the judgement must be reversed. Judgement reversed, and cause remanded to the county court for a new trial.