Holbrook v. Baker , 5 Me. 309 ( 1828 )

After this argument, which was had at May term 1827, the court took time for advisement, and its opinion was now delivered by

Mellen C. J.

The jury have, by their verdict, settled the question as to the alleged fraud in the conveyance of the clock ; and we are therefore to consider it as having been made fairly and honestly, for the purposes avowed and expressed at the time ; and the only inquiries are, whether the facts relating to the possession of the clock, and the nature of the mortgage of it, furnish any objections to its validity and intended effect. It has been contended that the mortgage was void as against creditors, because Peachy remained in possession of the clock. Still, a formal delivery was made, and by agreement of the parties, it was suffered to continue in its usual place in Peachy's house. ■ Now it has always been held in Massachusetts and this State, that the possession of the vendor after sale is only evidence of fraud; but is not such a circumstance as, per se, necessarily invalidates the sale. This is the principle in the case of an absolute conveyance ; and surely a more rigid one ought not to be applied to the case of a mortgage of a chattel. This case is not unlike that of Atkinson v. Maling 2. D. & E. 462. and Haskell v. Greeley 3. Greenl. 425. But this has ceased to be a point of any importance in the case, inasmuch as the mortgage, notwithstanding the possession remained with Peachy, was an honest and bona fide transaction.

Another circumstance relied on by way of objection is, that the mortgage was made to, secure, not only the fourteen dollars then due from Peachy to Holbrook, but certain future advances. ‘ In answer to this point also, we may refer to the above mentioned case of Atkinson v. Mailing ; and Badlam v. Tucker & al. 1. Pick. 389. The verdict puts a negative upon all suggestions of any unfairness or trust between the parties. Besides, the report states that at the time of the attachment, the mortgage, and its object, were distinctly made known to the defendant. Another objection to the defence is, that the attachment was made before the sixty days had expired; and while only a right of redemption existed in Peachy ; the legal property then being in the plaintiff. We know of no law which authorizes a, creditor to attach or seize on execution a right to redeem a chattel. Our statute relates only to rights of redeeming real estate. This is one of the grounds of the opinion of the Court in the before cited case of Badlam v. Tucker & al. and the principle is there distinctly laid down as clear and undisputed 5 at least in those cases where the money due to the mortgagee has not been paid or tendered to him. In every view of the cause we think the instructions of the judge were correct; and there must be

Judgment on the verdict,