Town v. Griffith

Gilchrist, J. When the writ was served upon the trustee in this case, he had in his hands a sum of money and a quantity of goods, which were the proceeds of sales of goods which the defendant delivered to him, in October or November, 1843. The delivery of the goods was ac [168] companied with, directions to sell the same, and to pass-, the avails to the credit of Edward Griffith, who was represented by the defendant to have been his surety, and entitled to an indemnity. He was, moreover, represented as being interested in the goods as a mortgagee, and, in fact, the source of authority under which the trustee was to proceed in making the sales. Some progress had been made under these instructions, and some money had been paid over by the trustee to the defendant, assuming to receive it as the agent of his father; but no recognition whatever had been made by the latter of any of these acts of the defendant, or of the proceedings of the trustee, up to the time of the service of the writ. The case wholly fails to furnish any evidence that the trustee was appointed or acknowledged by Edward. Griffith as his agent in receiving, keeping or selling the goods, until after the service of the writ; or that, until after that event, any knowledge ever came to Edward Griffith that goods had been deposited with the trustee by the defendant for any purpose whatever. It therefore cannot be found, upon any evidence thus far adverted to in the case, that the goods were delivered to Edward Griffith, or his agent, either under the mortgage or in pledge; or that the trustee was in any way chargeable at the suit of Edward Griffith, or as his bailee, by virtue of having received the goods, up to the time of the service of the writ, which arrested the progress of the business, and held the parties to the relations in which they then stood. Hp to that point of time the only party with whom the trustee had dealt, so far as there is evidence, was the defendant; and Edward Griffith first appears as a party in person, by the written order or request which he afterwards sends for the payment of the money to the defendant as his agent. He then, for the first time, appears to- recognize the trustee as his servant, and to accept the benefit of the bailment of the goods that had [169] been made for his indemnity. In such a state of things, therefore, it is clear that the trustee should be chargeable as having-the goods or money of this defendant at the time of the service of the writ. But a claim is set up under a mortgage executed by the defendant, and recorded by the town-clerk of Greenland on the 14th day of August, 1843. To this claim the most obvious objection is, that the ease furnishes no evidence whatever that the mortgage deed was ever executed and delivered to the mortgagee. These facts are not in terms apparent, nor is there evidence fi’om which they are necessarily to be inferred. But, as it is possible that such evidence may exist, it becomes proper to notice another objection to the validity of the mortgage, which proceeds upon the admission of those necessary facts. The statute providing for the mortgage of chattels requires that “possession must be delivered to and retained by the mortgagee, or the mortgage must be recorded in the office of the clerk of the town in which the mortgagor resides,” &c. Rev. Stat., chap. 132, sec. 2. There was, as we have seen, no delivery of property to the mortgagee, and it remains to examine the evidence adduced to prove á record of the mortgage. As to this point, all that appears is, that it was not, in point of fact, recorded till in April, 1844. On the 14th day of August, 1843, it was delivered by the mortgagor, whom, without any evidence of the fact, we will presume to have been authorized by the mortgagee to act for him. But he gave no directions that the instrument should be recorded; on the contrary, he directed the clerk not to record it till further orders, and in April afterwards he gave those orders, and it was accordingly recorded. It is impossible to distinguish this case in principle from that of Low v. Pettengill, 12 N. H. Rep. 337, which it closely resembles in its leading facts. In that case the [170] court held that the mere leaving the mortgage with the clerk, to record it at some future period, was not a record or equivalent to a record. To hold it to be such would be to defeat the purpose of the law on the subject, which was to give publicity to the transaction, and notice to all such as desired information sufficiently to seek for it at a place provided by law for furnishing.it. The entry made by the clerk upon the back of the instrument, indicating the day and hour of its reception by him, is of no consequence, since it does not appear that it was ever delivered to him for record, except with the qualification mentioned. If it is conclusive evidence of the fact it purports to certify, it certainly cannot be deemed conclusive that the instrument was delivered for the purpose of being recorded in the ordinary manner, when the proof is clear, as it is in this case, that it was not so delivered; but that it was • delivered with directions that it should not be recorded till further notice. Hastings v. Turnpike, 9 Pick. 80. We are,,therefore, of the opinion — without inquiring as to the precise effect of leaving a mortgage for record, with directions to that purport, when there is never in fact any record made, the circumstances of the case rendering such an inquiry unnecessary — that the trustee must, upon the evidence, be charged. Trustee charged.