St. Clair v. Cleveland , 83 Me. 559 ( 1891 )

Virgin, J.

Replevin by the assignee of an insolvent estate. On February 26, 1889, the defendant loaned seven hundred dollars to his son (the insolvent) -who, at the same time executed and delivered to him a “written instrument of the following tenor : "$700. Received of J. S. Cleveland, $700 to pay notes of (1. W. Glover and 1). II. Bisbee, for which I give the following as security; one soda-fountain, three marbles and fixtures, four oval front show-cases, one square show-case and one Morris and Ireland Safe.”

On October 1,1889, the son gave to the defendant his promissory note of that date for seven hundred dollars payable in five years with interest annually and at the same time executed and delivered to him a mortgage in the usual extended form, of the same chattels.

The instrument of February, 1889, was never recorded ox-surrendered iix fact, but the formal mox-tgage was x-ecorded on November 1, 1889.

OnNovember 16,1889, the soixfiled his petition in insolvency, the plaintiff was subsequently appointed assignee and received the statutory assignment.

After due demand oix the defeixdant aixd his refusal to deliver the chattels, the plaintiff, as assignee, on February 24, 1890, replevied them.

The presiding justice who tried the action without a jury, x-uled in Substance, that the mortgage of October 1, 1889, was "given by the debtor to secure a prior existing creditor;” and it ixot haviixg "been recorded at least three months prior to commencement of ixxsolvency proceedings ” as provided by E. Si, c. 70, § 33, was invalid as agaixxst the assignee.

But the court are of opinioxx that the ixote was but a renewal of the loan, and the mortgage was not giveix to secure a debt to a prior existing creditor but simply as a renewal of the former instrument of Februax-y 26, 1889 ; and therefore did not come within the provisions of R. S., c. 70, § 33. Hutchinson v. Murchie, 74 Maine, 187; R. S., c. 70, § 52.

Exceptions sustained.

Peters, C. J., Walton, Libbey, Haskell and Whitei-iouse, JJ., concun-ed.