Brown v. Thompson , 59 Me. 372 ( 1871 )

Tapley, J.

In this case a mortgage, with an instrument exe^ cuted upon the back of it, was introduced as evidence of title. Upon the legal effect of the two instruments, the presiding judge was requested to rule and did rule, “ that the mortgage, with the writing on the back, gives to the plaintiff a title to the stock in .trade in the Williams’ store, May 10, 1869.” The only question here presented is the • correctness of this ruling. The mortgage, and all indorsements and certificates thereon, make a part of the case.

By recurring to the mortgage it will be found to be a mortgage of all the stock in trade in the store now occupied by Edward McNeil in said Calais, on Point street, consisting of cloths, etc., etc.; also, any and all additions that may from time to time be made to said stock, etc.,'etc. This mortgage was made January 23, 1869, and was made to secure the payment of thirty-three hundred and seventy-four dollars. On the 10th of May, 1869, such of the goods as remained unsold, and such additions to the stock as had in the interim been made were removed from the store on Point street to another store on Union street. Thereupon the writing found upon the back of the mortgage was made and recorded the next day in the city registry.

No 0110 reading tlie original mortgage and instrument written on the back thereof, can doubt that its purpose was to create a lion upon all the goods thus moved as a security for the mortgage debt.

No question is made that the mortgage when made (Jan. 23, 1869) created such a lien upon the goods then in the Point street store, nor is it assumed that their removal to the Union street store in anywise affected this lien. The controversy arises as to the additions which had been made since the making of the mortgage, and prior to the making of the new writing on May 10, 1869.

As to these goods, the original mortgage provided that they should be held as a security for the mortgage debt as they were from time to time added to the stock. Without determining at this time Avhetlier this of itself did create a lien upon the goods which would be valid against an attaching creditor, we direct attention to the instrument of May 10, 1869, upon the back of the mortgage, and there we find, in reference to these goods, an agreement of all the parties then interested, that this mortgage “ shall hold and cover any and all additions that have been made to the same.” Here is a clear and unequivocal extension of the descriptive part of the mortgage, sufficient to cover in terms the goods in question. It is then provided that the same are to be held “ precisely the same as though the stock had remained and put into the store of the said Brown on Point street.” We think it quite apparent this provision relates to the conditions under which the goods were held, viz., as a security for the mortgage debt duo upon the terms mentioned in the mortgage.

The writing has two elements in it noticeable, and indicative of an intention to fix a lien upon these additions. First, it extends the mortgage so that it shall hold and cover the goods in question. Secondly, having done this it provides they shall be held subject to the same defeasance as the other goods. Then, the instrument is executed and recorded with all the formalities of a mortgage of personal property.

Now if it should be held that the original mortgage was ineffectual as to the after-acquired goods, we find here an instrument containing all the essentials of a conditional transfer, made upon good consideration and duly recorded some seventy-five days before tire attachment relied upon as a justification.

It is suggested, however, that this instrument is invalid for the want of a revenue stamp. Under the decisions of this court referred to by both counsel, we think it sufficient to say that there is no evidence in this case to warrant that conclusion. We hold that the ruling of the presiding judge was right, and that under the agreement of the parties the entry must be,

Defendant defaulted.

Damages'to be assessed by the judge at nisi prius.

AppletoN, C. J.; CuttiNG, ReNT, WaltoN, DickeesoN, and Danfoeth, JJ., concurred.