Croswell v. Allis

Storrs, J. The only question made before us in this case, respects the validity of the mortgage from S. W. Allis to Elliott. Its form is confessedly unexceptionable; but various objections to it have been taken by the plaintiff, arising on the facts found by the committee These objections will be examined in the order in which they have been presented. 1. It is found that the mortgagor remained in possession of the property embraced in the mortgage, from the time of its' execution to the appointment of the plaintiff as trustee; and the plaintiff claims, first, that that circumstance, by the settled law of this state, in regard to the unexplained retention of the possession of personal property by the vendor, rendered the mortgage fraudulent and void. In answer to this objection, it is claimed that the mortgage is rendered valid by the provisions of the fourth section of the act against fraudulent conveyances. (Stat. 571, tit. 20,) notwithstanding such retention of possession by the mortgagor That section provides that “ whenever the occupant of any dwelling-house, having a family, shall-mortgage the household furniture used by him [310] in housekeeping, for the security of any debt or duty, by a deed in which such furniture shall be particularly described, and which shall be executed, acknowledged and recorded in all respects as mortgages of lands are required to be, such mortgage shall be good and effectual, although the mortgagor shall retain possession of the mortgaged property.” As it appears that the mortgagor in this case was the occupant of a dwelling-house, and had a family of his own, exclusive of the guests who were entertained in his house, and that the property mortgaged was household furniture, there is no doubt, and indeed it is conceded, that the conveyance fulfils all the conditions which are required by this provision in order to entitle it to the immunity of being free from the necessity of a change of the possession of the property, and to render the conveyance valid, although there was no such' change of possession, unless it be that which requires that the furniture mortgaged should be used by the mortgagor in housekeeping. Whether that provision was complied with in this particular, is the question before us. On this point, the question is reduced by the finding of the committee, within much narrower limits than those embraced by the argument of the plaintiff. On the facts found, it is not necessary to decide the question which has been raised, whether the statute applies to a mortgage of household furniture by a person who, whether having a family of his own or not, uses it exclusively in the business of keeping a hotel. It appears from the finding, that the rooms in the premises occupied by the mortgagor as a hotel, which formed only one establishment, although originally consisting of several distinct dwelling-houses, and also the furniture therein which was embraced in the mortgage in question, was used indiscriminately by the family of the mortgagor, consisting of his wife, daughter and sister, for family purposes, as they had occasion, as well as for the accommodation and entertainment of the guests of the hotel. It is quite obvious that if this furni-' ture were not used for the latter purpose, it would be embraced within the statute, and the question therefore is, whether the use of it for that purpose deprives it of the im [311] munity which the law would otherwise confer on it, in dispensing with the necessity of a change of possession. It is to be observed that the furniture to which the statute applies, is not limited by it in respect to its quantity, quality or value; the use made of it by the mortgagor, is the only characteristic which is to determine whether a change of possession must accompany a mortgage of it. Now it can not properly be said, that the use of it for the purposes of a hotel deprived it, in this instance, of the character of furniture used by the mortgagor for his own domestic purposes, although it is possible that it was used to a less extent for the latter purposes, than if it had not also been used for the other; but the extent of its use is not made the criterion by which it is to be determined, whether the statute applies to it. It has been suggested that the statute should be held to embrace only furniture which is used by the mortgagor exclusively for his own family housekeeping. We do not feel at liberty to give it such a restricted operation. It is remedial in its nature, and its design is to be mainly regarded in its construction. It is very clear that the legislature was induced, by the fourth as well as the next preceding section of this law, to exempt a mortgage of the articles of personal property therein specified, on its being executed and made public by its being recorded as therein provided, from the general rule applicable to conveyances of personal property, by the consideration that those articles are such as are constantly used by the owner and constitute the means of his livelihood, and that he would necessarily be subjected to great and peculiar inconvenience and injury by being deprived of their use. We think that the furniture in question was embraced by the reason and policy, as well as by the letter, of the statute, and that the mortgage of it was unexceptionable on this ground. 2. The mortgage in question purports to convey different kinds of furniture, and a specified number of each kind. It appears that it specified a greater number of some of these kinds, and a less number of others, than the mortgagor owned. The plaintiff objects that it is therefore void as to both of these kinds for indefiniteness and uncertainty as to [312] the things conveyed. This objection is groundless as to those classes of which a greater number of articles is mentioned than the grantor possessed. Omne majus continet in se minus. The conveyance comprehended, and was therefore sufficient to pass, all the articles of those classes which he owned, and beyond that was simply inoperative. But in regard to those classes of which he owned a greater number of articles than that specified to be granted, we are of opinion that the conveyance is so indefinite and uncertain that none of them passed by it. The question before us depends on the terms of the conveyance alone. There was no delivery, separation or designation of the particular articles intended to be conveyed, nor any act accompanying or connected with the conveyance, by which they can be ascertained. In this respect the case is essentially different from those cited by the defendant. The inventory shows that the articles, of which each of these classes was composed, differed in their quality, and value. How then could it be determined^ by the mortgage itself, which of them were intended to be conveyed 1 And it is not an instrument where by a true construction of its terms, either the grantor or grantee was at liberty to select the articles which should pass by it. If it were, there had been no such selection in this case. 3. We are strongly inclined to the opinion that as against the plaintiff, the mortgage in question, under the circumstances in which it was executed, is not liable, within the true meaning of the seventh section of the act of 1853, for the relief of insolvent debtors, &c. (Statutes, p. 515,) to the objection made by the plaintiff, that it was not taken at the time when the endorsement, which it was intended to secure, was made. But it is not necessary to decide that point, because it is found that it was not made by the mortgagor with a view to his insolvency, or while he was in failihg circumstances, according to the construction which we have put on that act, and therefore it is not one of those conveyances to which the clause above alluded to in the seventh section of it, applies. (Utley and al. v. Smith and al., 24 Conn. R., 290.) Nor is this conveyance liable to the objection raised against [313] it under the last clause of that section, for it is found that it was not withheld from record for the purpose of concealing its existence; and there is no claim that the mortgagor was permitted to remain in possession of the furniture for a like purpose. The superior court is therefore advised, that the mortgage should be sustained as to those several classes of articles where the number of them owned by the mortgagor did not exceed that specified in the conveyance, and held void for the residue. In this opinion, the other judges, Waite and Hinman, concurred. Decree accordingly.