Head v. Goodwin , 37 Me. 181 ( 1853 )

Tenney, J.

The title of the plaintiff to the chaise in controversy, is under a mortgage, dated May 10, 1851, from Daniel Tibbetts, for the purpose of securing two notes of hand, of $60 each, of the same date, and remaining unpaid at the institution of this suit. It appears by the mortgage, and other evidence, that the plaintiff sold to the said Tibbetts the Ghaise on the same day that the mortgage was given. The defendants claim title by virtue of a purchase from Tibbetts, who testified, that he bargained for the chaise with the agent of the plaintiff three or four days before the time when the mortgage was given, made a bill of sale of the chaise the day before the date of the mortgage and various articles of property besides; but it appeared by his testimony, that he sold only one half of the chaise at that time to Nelson, one of the defendants, and the other half to Goodwin, the other defendant, between the 15th and the 20th of May, 1851.

The counsel for .the defendants contend, that the bargain three or four days before the mortgage to the plaintiff, so vested the property in them, that the sale of one half thereof became perfect in Nelson, before it could be affected-by the mortgage. But Tibbetts, having admitted his purchase to have been made on the day of the date of the mortage? and the price of the property exceeding the sum of thirty dollars, .Tibbetts not having received it at the time of this bargain, which was not bound by any thing given in earnest for that purpose, or in part payment therefor, and not having taken any note or memorandum from the plaintiff, in writing and signed by him of the bargain, an earlier title of Tibbetts than that acquired on May 10, 1851, cannot be legally insisted on.

The certificate of the clerk of the town, where the mortgager resided, of his receipt of the same upon the back of the mortgage, is sufficient proof that it was left with him to be recorded at the time stated in the certificate. Ames v. Phelps, 18 Pick. 314. And there being one date .only to the certificates on the ba^: of the mortgage, the further statement thereon, that it was recorded on the town records, it must be understood as recorded at the same time. This record supersedes the necessity of the clerk’s noting on the book in which the record was made, the time when the mortgage was received. Sprowle v. Hardy, 31 Maine, 73.

It is objected, that the record being made upon the town records, and it not appearing that it was made upon a book kept for the purpose, the requirement of the statute has not been'complied with. The records of mortgages of personal property must be made by the town clerk. The books on which they are made belong to the office, and not to the individual, who may make the'record. On retiring from office he has no‘right to the book on which such records are made; neither is he entitled to remove them as his own property; but they pass into tbe hands of his successor; and are open to the inspection of all, who may be interested in any thing contained therein. The statute provisions are substantially the same, as those appertaining to the register of deeds, as to the reception and recording of deeds, depositions, levies, &c. Certificates on the documents, recorded by the latter, that they are recorded upon the records of the county named, are not defective. The statute does not provide, that the record of mortgages shall be upon a book kept exclusively for that purpose, and it is believed, that the certificate in this case is as specific and full as to meet the legal requirement. The book was used for the purpose in this instance, and nothing appears that it was not so used in others.

The mortgage was recorded on May 13, 1851, at 9J o’clock, A. M. Tibbetts testified, that he “brought the chaise out of Portland on May 10, got out Saturday night, Nelson and I at the stable that evening, and delivered chaise to him, nothing said between us about the sale of it that evening, sold one half of it to Nelson Friday before, gave him a bill of sale, it included chaise bargained for with Jewell, and took pay for them.”

The law is well settled, that a grant of goods which do not belong to the grantor at the time of the grant is void. But after the grantee has acquired a title thereto, the grant may be made effectual to pass the property, by a new act. And the question, what must be the character of the new act, has undergone discussions in England and this country by the courts; and there seems now to be but little controversy in relation thereto. Lunn v. Thornton, 1 Man., Gran. & Scott, 379. This was a case where the plaintiff therein “ by -deed poll, bargained, sold and delivered to the defendant all his implements of trade, and other effects whatsoever, then remaining, or which should at any time thereafter remain and be in and upon, or about his dwellinghouse at Stoney Stratford, and also all other effects elsewhere. Afterwards, under color of the assignment, the defendant seized all the goods, then upon the premises, and among them, certain goods, which were not upon the premises, or in the plaintiff’s possession at the time of the execution of the deed poll, but were acquired by the plaintiff afterwards, and were upon the premises at the time of the seizure.” Lord Bacon’s Maxim, Reg. 14, which is in these words: — Licet dispositio de interesse futuro sit inutilis, tamen potest fieri declaratio prcecedens, quae sortiatur effectum, interveniente novo actu," was applied. And it was held that notwithstanding the seizure on the premises, that there was no new act done, indicating an intention in the grantor, that these goods should pass under the former bill of sale. Tindall, C. J. delivered the opinion of the Court, after taking time for advisement, and says, “the new act, which Bacon relies upon, appears in all the instances, which he puts, to be an act done by the grantor, for the avowed object, and with the view of carrying the former grant, or disposition into effect.

In Jones v. Richardson, 10 Met. 481, the same question was presented, under a mortgage of property not owned by the mortgager at the time it was executed j and the mortgagee offered to prove that the property in question, after it was acquired by the mortgager, and before the rights of the defendant, who was an attaching creditor of the mortgager, had intervened, was taken into his possession, with the other property, for the purpose of foreclosing the mortgage. This proof was deemed irrelevant by the Court, and the Judge who delivered the apinion says, — “He did not prove or offer to prove any act done by the mortgager, after the mortgage was duly executed, by which he ratified the same, as to the subsequently acquired property.” The construction put upon Lord Bacon’s maxim in Limn v. Thornton, was fully adopted, that there must be an avowal of the object with the view to carry the former grant into, effect.

In the present case, the strongest import of the testimony as proof of a new act, relied upon by the defendants as sufficient, is, that on Saturday night of May 10, the chaise was delivered to Nelson, at his stable, and nothing said about the sale of it that evening. The purpose of the delivery was not disclosed, and it cannot be inferred with any degree of certainty, that it had any connection with the attempted sale the day before. It was at Nelson’s atablé, where it was highly probable, that people were in the habit of seeking accommodation for their horses, and carriages would be delivered to the proprietor for safe keeping. There is nothing to show that such might not have been the purpose of Tibbetts, when the chaise was left with Nelson on Saturday night. The delivery spoken of was of the chaise, when it was only of one half thereof which had been the subject of the sale relied upon, a circumstance of some little weight, to be considered in reference to the question of the intention, touching the “new act.” At any rate, the object of Tibbetts in the delivery was not avowed to be for the purpose of carrying the sale into effect, nor was there any declaration of such a view, which seems to be regarded as indispensable, and necessary to be made in some manner. Nothing was done, before the recording of the plaintiff’s mortgage from Tibbetts, which could make the sale to Nelson effectual. The contract of sale for the other half of the chaise to the defendant Goodwin, was after the mortgage was recorded, and could not affect the plaintiff.

In November, 1851, after the first note given by Tibbetts to the plaintiff became payable, Jewell, who had acted as the agent of the plaintiff in making the contract of sale of the chaise, was unable to collect the note, and called upon the defendants at their stable, where the chaise then was, showed them the mortgage, and demanded the chaise of them. They answered, that they should not give it up, till they were obliged to do so; and they said they had bought it. In this last declaration they are confirmed by Tibbetts, who testified, that he sold the chaise to them and took his pay.

Jewell having the mortgage in his possession, and - having shown it to the defendants, at the time when the property was demanded, and the plaintiff having subsequently commenced this suit, is satisfactory evidence, that the demand was made by sufficient- authority. The refusal of the defendants to surrender the chaise on demand is evidence of a conversion; and they having claimed to hold the chaise, unaffected by the mortgage, and for a full price, by a purchase thereof, and not of the right of Tibbetts merely, the conversion may be considered as made at the time the property was taken by them as their own. But whether at that or any subsequent time before this action was commenced, is quite immaterial; the question being- whether it was converted, and not at what particular time, the conversion took place.

The defendants being sued as partners, and it being alleged in the declaration, that as partners, they converted the property; and the defendants having pleaded severally the general issue, it is insisted by them that the partnership is a material allegation, and must be proved. The law treats all torts, several as well as joint, and upon such a plea as is here filed, a verdict might be for the plaintiff as to one of the defendants only, and in favor of the other, and a judgment could be entered against the former. The evidence is satisfactory, that both are guilty of the conversion of the ■property, and they cannot be regarded as less so, in this action, and under the issue presented, by being charged as having made the conversion as partners.

Defendants defaulted.

Sheplet, C. J., and Wells, Howard and Appleton, J. J., concurred.