Peaks v. Smith , 104 Me. 315 ( 1908 )

Cornish, J.

This is an action of trover against an officer to recover the value of personal property attached December 18, 1906, and is before the Law Court on report.

The plaintiffs claim title under a mortgage given to them by the debtor, September 6, 1906. The validity of this mortgage, as against the attaching creditor is attacked by the defendant on the ground that neither had the property been taken into possession and kept by the mortgagees, nor had the mortgage itself been recorded. The plaintiffs admit these facts but reply that there was no place where the mortgage could have been legally recorded and therefore the action is maintainable.

R. S., ch. 93, sec. 1, provides as follows : "No mortgage of personal property is valid against any other person than the parties thereto, unless possession of such property is delivered to and retained by the mortgagee, or the mortgage is recorded by the clerk of the city, town or plantation organized for any purpose, in which the mortgagor resides, when the mortgage is given. . ... If any mortgagor resides in an unorganized place, the mortgage shall be recorded in the oldest adjoining town or plantation organized as aforesaid, in the county.”

The mortgagor resided, at the time the mortgage was given, in Askwith, which is an unorganized place in Somerset County, and is surrounded by other unorganized places. No town or organized plantation adjoins it so that the statute requirement as to record could not have been complied with. Did this fact relieve the mortgagees from the other requirement, the taking and keeping possession of the mortgaged property ? We think not.

At common law, as a general rule, to make a transfer of personal property, whether absolute or conditional, valid as against third parties, delivery was required and, in general also, a retention of the property by the vendee. Lanfear v. Sumner, 17 Mass. 109; Goodenow v. Dunn, 21 Maine, 86. The legislature of Massachusetts by P. L. of 1832, ch. 157, sec. 1, provided, for the first time for the registration of personal mortgages and the court in Bullock v. Williams, 16 Pick, 33, (1834) construed this registration, when made, to be a substitute for the taking and keeping of possession. "The plain implication of the Statute is, that if possession is delivered to and retained by the mortgagee, or if the mortgage is recorded pursuant to the directions of the statute, it shall be valid against other-persons,” says Chief Justice Shaw in that case.

The legislature of Maine in chap. 390, sec. 1, P. L. 1839, reenacted the Massachusetts Statute in these terms :

."No mortgage of personal property hereafter made .... shall be valid against any other person than the parties thereto unless possession of the mortgaged property be delivered to, and retained by, the mortgagee, or unless the mortgage be recorded by the clerk of the city, town or plantation where the mortgagor resides.” Our court has followed the construction placed upon the same statute by the court of Massachusetts. Smith v. Smith, 24 Maine, 555; Morrill v. Sanford, 49 Maine, 566; Hamlin v. Jerrard, 72 Maine, 62.

The clause of the statute relating to possession is simply declaratory of the common law, while that relating to record provides an equivalent therefor not previously authorized. The mortgagee is given his option either to take and keep possession, or to record the mortgage. The two methods are distinct. One or the other is indispensable as against third parties. Impossibility of recording does not abrogate the necessity of possession any more than the impossibility of possession would annul the necessity of record. The purpose of registration was to give notice to creditors and subsequent purchasers, notice which before the statute' was left to be inferred from delivery and possession, Sawyer v. Pennell, 19 Maine, 167, and the mortgagee must employ one method or the other, it matters not in what section of the State the mortgagor may reside.

Plaintiffs rely upon Wade v. Bessey, 76 Maine, 413, where the court held that the then existing statute requiring an assignment of wages to be recorded "in the town or plantation organized for any purpose, in which the assignor is commorant while earning such wages” did not apply to an assignor earning wages in an unorganized township. We hold the same here. If the facts do not meet the statute, the statute does not apply. But the statute throws upon the mortgagee in such cases another duty, the common law duty that existed before the statute was passed, while in the case of the assignor, no other burden is imposed, More in point is Grant v. Albee, 89 Maine, 299. The rule as to the attachment of personal property is similar to that governing mortgages. At common law in order to perfect and preserve an attachment of chattels, it was necessary to take and retain possession and control of the property or to have the power to take immediate control. Laughlin v. Reed, 89 Maine, 226. A statute, originally passed in 1840, authorized the recording of attachments of bulky personal property and with, some amendments is still in force. In 1896 the then existing statute provided that "when the attachment is made in an unincorporated place” the copy of the officer’s return of attachment "shall be filed and recorded in the office of the clerk of the oldest adjoining town in the county.” In Grant v. Albee, supra, personal property was sought to be attached in an unincorporated place with no town adjoining, and the officer recorded his attachment in the oldest and nearest town, but failed to keep possession of the property. The court held that the record was not authorized and the attachment was void. If the plaintiffs’ reasoning in the case at bar is correct the impossibility of the record rendered unnecessary the taking of possession.

It is interesting to note that the statute as to recording assignments has been amended to cover the omission existing at the time of Wade v. Bessey, 76 Maine, 413; (1884) See P. L. 1897, ch. 301, R. S., ch. 113, sec. 6, P. L. 1907, ch. 103. And the statute relating to recording attachments of personal property, existing at the time of Grant v. Albee, 89 Maine, 299, (1896) has been similarly amended. See P. L. 1897, ch. 331, R. S., ch. 83, sec. 27. Moreover by P. L. 1850, ch. 180, recording of a personal mortgage was authorized in the nearest incorporated town in case the mortgagor resided in an unorganized place, which would have met the conditions in the case at bar; but by P. L. 1853, c. 103, this was changed "to the oldest adjoining town in the county.” To change it back and make it harmonious with the statute governing assignments and attachments is for the legislature and not for the court.

The burden is on the plaintiffs to prove their right of possession of the goods attached. This they could do by proving that "possession” of the goods bad been "delivered to and retained by” them as mortgagees, or that the mortgage had been duly recorded, Citizens National Bank v. Oldham, 142 Mass. 379. The latter could not be done, the former was not done, and the entry must therefore be,

Judgment for defendant.