Morse v. Powers

Parker, C. J. The evidence shows that the plaintiff took possession of the property in question under the mortgage, and that he retained that possession within the meaning of the statute. There should be a change of the possession, as stated in Smith v. Moore, 11 N. H. Rep. 55. But what is necessary to constitute a change of possession must depend upon the particular situation of the propeiiy. 10 N. H. Rep. 236, Clark v. Morse. Upon a sale of articles which are at the time in the house of the vendor, they should be removed, or a control over them be kept in some way. So, perhaps, where they are on the land of the vendor, for that is his possession. But if they are — 294 — in the house of a third person, a delivery to the owner of the house to hold, as the agent of the vendee, might he a substantial change, so that it would not be necessary to remove them in order to take and continue the possession. The vendee would have possession by his agent, and this would seem to be a change of the possession within the rule. There may be a change of possession without a change of locality. If property, which is not within the actual possession of the owner, be sold and delivered to the vendee, leaving it in the place where -it was situated is uot leaving it in the possession of the vendor, and creditors should not be misled because it remains in the same locality. The very fact that the property is not in the possession of the debtor leads to the inquiry how it is held, and who is the owner; and the fact that the debtor •was the owner, and left it at the place where it is found, leads to no legitimate inference that it continues to be his property, when he has not the possession and exercises no acts of ownership over it. To presume, without inquiry, that it remains his, is an unwarrantable presumption. Suppose the owner of property permits it to go into the possession of another person, who is a bailee for hire, or a depositary, and the bailee subsequently purchases it fairly, paying a full consideration. The ordinary if not necessary operation of such a transaction is to leave the article in the possession of the purchaser. The very nature of the transaction would leave the property in the same situation in which it was previous to the sale; and the parties to the sale are not required to do an unnatural act in order to perfect the sale as against creditors. To make a change of the actual possession would put the property out of the possession of the vendee. Cases of such a character are not those where a false credit arises from the possession, and the creditors are not authorized to infer that the property continues to belong to the debtor because it was his when the bailment commenced. In — 295 — this respect it differs materially from a sale where the property is in the actual possession of the vendor, and ■where the natural course of a bond fide sale is to cause a change to the possession of the vendee. In the present case the manual possession was not in the mortgagor nor in the mortagee, at the time when the attachment was made; but the legal possession was in the mortgagee. The property was partly on a public landing. This was in the possession of the mortgagee after the delivery to him. So of that part which was at "Whitman’s mill-yard. If Whitman be regarded as having the actual possession, he had it for the party having the right of possession. The mortgagee took actual possession, and that possession was not relinquished, nor the prior possession restored, by leaving the property where it was at the time of the delivery.' There is another view of this case. When the delivery of the lumber at the mill was completed, the plaintiff told the owner of the mill that he would pay for the use of the mill from that time. When that at the landing was delivered, he told the owner of the landing that he ■would pay him for the occupation of that. If it was necessary for him to do more in order to sustain his mortgage title, what was ho required to do ? It was evening. He could not be required to remove the lumber during the night, nor to keep personal watch and ward over it until morning, travelling from hour to hour between the landing and the mill-yard. And we are of opinion that he was not bound to keep agents at the different points during the night for that purpose. Ho might well go home and take measures for the removal of the property in the morning. This would not be a relinquishment of the possession, nor negligence. There is a sufficient explanation why a removal did not take place, if a removal were required, especially as the property was not left in the hands of the mortgagor. — 296 — - We are of opinion that this would be sufficient in the ease of an absolute sale, where the goods were at the time in the possession of the vendor. In such case there must be sufficient explanation, if the possession is not changed. 3 N. H. Rep. 415, Coburn v. Pickering. But it is a sufficient explanation that the property is left until the vendee can procure the necessary means of removal. He could not be required to go to the house of the debtor, prepared with carts, in anticipation of a purchase; nor to remove at midnight, in order to manifest the bond fide character of a purchase which he had completed. The assignment in .Vermont appears to have been a valid instrument according to the laws in existence there. • The mortgage is valid by the laws of this State, where it was executed. The two instruments cannot be construed together, as parts of the same transaction, so as to avoid the mortgage, upon the ground that the assignment is fraudulent as to creditors, and that the whole is, therefore, vicious. The assignment would have been invalid, if made here, to operate on property here, because it contains preferences not allowed by our statute. But it was not made here, and it cannot be rendered invalid by any constructive tacking of it to the mortgage. If that is good, and must remain so, because made in Vermont, it is not‘readily perceived upon what principle the mortgage, which is otherwise good, is to be avoided by construing it as a part or another transaction which is also legal and valid. If an entire transaction consist of several parts, and one fails,; the rest may fall with it; but the principle which governs such a case has no application in this: The note to- Bell was introduced to repel an inference of fraud, which might otherwise have been drawn from its non-production, and for that purpose it was admissible. The evidence respecting the shares in [the bridge corporation was properly rejected. It was offered to show fraud in the mortgage. Supposing the declarations and — 297 — acts of Bell and Timothy Morse were competent material for evidence against those persons, to show that the transfer of the bridge shares was not absolute, but merely as a collateral security. It does not appear that the transfer had any connection with the note specified in the mortgage, or that the plaintiff had any concern with that transaction. Suppose the bridge shares were in fact transferred as collateral security for the note hold by Bell, and that the transfer was invalid against creditors, because absolute on its face, when in truth it was conditional. The fact that creditors might avoid that security wTould serve to show that the debt was not amply secured by that transfer, and would certainly furnish no reason why the maker of the note thus intended to be secured might not secure the surety who, by reason of the invalidity of that security, was the more exposed to loss, and of course in greater need of indemnity. The objection that the mortgage is invalid because it is partly in trust for the benefit of Robert Morse, and thus itself in the nature of an assignment, cannot be sustained. It is not essential to the validity of a mortgage that it should be wholly for the benefit of the mortgagee, nor will a trust for the benefit of a third person, of itself, give it the character of an assignment, within the act requiring assignments to comprehend all the property of the debtor, and to be without preferences. The objection arising from the oath of the parties to the mortgage, indorsed upon it in pursuance of the statute, seem not to have been that the mortgage itself is invalid, because the proper oath was not taken, but that the note to Bell could not be introduced in evidence, because the security of that was not comprehended in the oath which was taken; but there is nothing inserted or omitted in the oath which can estop the plaintiff from showing that the mortgage was not fraudulent, or rebutting a possible — 298 — inference of fraud; and that, we have seen, was the object of introducing the note which furnished the foundation of this objection. Judgment for the plaintiff.