Citizens' National Bank v. Oldham , 142 Mass. 379 ( 1886 )

Gardner, J.

The plaintiff concedes that the mortgage given by Littlefield was not recorded as required by the Gen. Sts. c. 151, § 1, which, among other things, provide that “ unless a mortgage is so recorded, or the property mortgaged is delivered to and retained by the mortgagee, it shall not be valid against any person other than the parties thereto.” In order to show that there was an existing mortgage which would prevail against the defendant, the plaintiff must prove that the property mortgaged was “ delivered to and retained by the ” plaintiff. The property was within the exclusive possession and control of Littlefield, the mortgagor, until October 1, 1881. At that time, Castleman came to Boston, as the authorized agent of the mortgagee, to take possession of the wagons for breach of the condition of the plaintiff’s mortgage; and on October 1, 1881, with the consent of Littlefield, and acting under his authority from the plaintiff, he “ assumed the management and control of the mail service under said contract, and continued it until after the attachment.” Littlefield remained to assist him, the wagons continued to be used as before in said service, but under Castleman’s control. The agent of the plaintiff was also agent of one Boone, who was the contractor with the United States government to carry on the United States mail service in Boston. Littlefield was sub-contractor under Boone, and failed to perform his contract, and Castleman, as the agent of Boone, came to Boston to take from Littlefield the possession, control, and management of the mail service. It was essential, in order to avoid a breach of the contract, to keep these wagons in constant use in the mail service, and they were so used.

The presiding judge found at the trial that Littlefield, at the time of the attachment, was in the actual possession and use of the property, subject to the direction and control therein of an agent of the plaintiff, authorized thereto by the plaintiff.

This case differs from that of Carpenter v. Snelling, 97 Mass. 452, in one important particular, although in other respects it is similar. In that case, the agent of the mortgagee went to the house of the mortgagor with a bill of parcels, and the mortgagor pointed out the property enumerated therein, and said that he gave possession of it to the agent in behalf of the mortgagee. In the case at bar, there is no evidence of such a delivery. The evidence is not clear as to what Castleman, the agent, did. He may have done no more than execute direction and control over the mail service, and incidentally over the wagons used in the service, without any delivery of possession to him. The Superior Court may have found that there was no such delivery to, and retention of the mortgaged property by, the agent Castleman as the statute required. This was a question of fact clearly within the determination of that court, and is not subject to our revision. The bill of exceptions does not undertake to report all the evidence, and we cannot say, as matter of law, that the court did not find that there was no delivery of the mortgaged property to the mortgagee’s agent, and retention by him of the same. If the court so found, we cannot determine that there was error in such finding.

Exceptions overruled.