Bickart v. Sanditz

Plaintiff seeks corrections of the finding in both striking out several of the paragraphs of the finding made by the court and substituting others in her draft-finding, and also by adding thereto certain other paragraphs. An examination of the evidence discloses that no fact is found without evidence, and no material fact established by uncontradicted evidence has been omitted. The finding is therefore not to be corrected as requested.

It appears that the motortrucks described in the chattel mortgage were never placed in the possession of plaintiff, but were retained in the possession of Samson Yolen, the mortgagor, at all times up to their destruction by fire, and that the trucks subsequently purchased by him and involved in the replevin, were never in the possession of plaintiff, but passed by sale to several different purchasers and finally to defendants, who are bona fide purchasers, upon a valuable consideration and without notice of any claim against them by plaintiff, until demand was made for the return of the trucks in the present action. Plaintiff does not question the rule of law that while the retention of possession of personal property by the vendor after a sale does not affect the rights of the parties as between themselves, it renders the sale invalid as against subsequent attaching creditors of the vendor, without notice, and bona fide purchasers without notice who secure the property. Patchin v. Rowell,86 Conn. 372, 376, 85 A. 511. While conceding the general rule to be as just stated, plaintiff contended in this court, as she did in the court below, that at the time of the institution of this action she was lawfully entitled to the possession of the trucks in question, by virtue of the chattel mortgage from Samson Yolen to her, of date of December 20th, 1921, relying for her claim upon §§ 5206 and 5208 of the General Statutes, which deal with the subject of chattel mortgages of goods without possession given to the mortgagee, and after-acquired property of like nature that is covered by an existing mortgage.

Section 5206 provides that "when any manufacturing or mechanical establishment, together with the machinery, engines or other implements situated and used therein; or any printing, publishing or engraving establishment, together with the machinery, engines, implements, cases, types, cuts or plates situated and used therein; . . . shall be mortgaged by a deed containing a condition of defeasance, and a particular description of such personal property, executed, acknowledged and recorded as mortgages of land, the retention . . . of the possession of such personal property shall not impair the title of the mortgagee." Section 5208 provides that "any after-acquired property forming a part of the establishment . . . or . . . used therein, or any after-acquired, substituted machinery or personal property, of like nature to the property included in such mortgage, shall be covered by such mortgage," etc.

The sections in question "are in the nature of exceptions to the general policy of the law. They do not reverse the general rule as to the effect of retention of possession of tangible chattels by the former owner, . . . but they do create definite exceptions to the rule upon terms imposed by the statutes themselves; and compliance with such terms is thus made a condition precedent to the validity of the lien as against all purchasers and attaching creditors not having actual notice thereof." Safford v. McNeil,102 Conn. 684, 688, 129 A. 721; Hartford-ConnecticutTrust Co. v. Puritan Laundry, Inc., 95 Conn. 172, 180,111 A. 149.

To come within the scope of the statute and to be the subject of a chattel mortgage, good against attaching creditors and bona fide purchasers without notice, personal property left in the possession of the mortgagor must be property that is situated within and used within the manufacturing or mechanical establishment. The motortrucks in question were not situated within and used within the establishment in question, but were used in carrying merchandise to and from the establishment. Property of this character is not property within the classes excepted by the statute.

"The retention of possession by a mortgagor of personal property makes the mortgage invalid as Samson Yolen, the mortgagor, at all times up to their destruction by fire, and that the trucks subsequently purchased by him and involved in the replevin, were never in the possession of plaintiff, but passed by sale certain conditions." Adler v. Ammerman FurnitureCo., 100 Conn. 223, 228, 123 A. 268. If the property in question is not within the classes of personal property excepted by the statute, the recording of the mortgage is not notice to a bona fide purchaser. Adler v. Ammerman Furniture Co., supra, 228. To come within the provisions of the statute, the chattels sought to be mortgaged should be in effect "situated and used in" the particular establishment. Talcott v. Meigs,64 Conn. 55, 58, 29 A. 131. When a statute creates an exception to a general rule, it is to be construed strictly and its language is not to be extended beyond its evident intent. Patten v. Smith, 4 Conn. 450, 454.

The trucks in question not being within the classes of property within the exceptions of the statute, it follows that the chattel mortgage was ineffective against defendants and that at the time of the replevin plaintiff was not lawfully entitled to their possession as against defendants, but that both title and the right of possession were lawfully in the latter.

The trial court held that the mortgage was ineffective against the defendants, upon the grounds above stated, and also upon the ground that the mortgage was witnessed by a single witness only. Section 5206 provides, as one of the conditions making valid a mortgage of personal property, with retention of possession by the mortgagor, that the mortgage shall be "executed, acknowledged and recorded as mortgages of land." Section 5084 of the General Statutes provides that all conveyances of land shall be "attested by two witnesses." Reading § 5206 in the light of § 5084, it is quite evident that the framers of § 5206 intended that a chattel mortgage should conform, in all respects, to the manner of execution and acknowledgment of a mortgage of land. If the contention of the appellants, that a single witness suffices to attest the signature of a mortgagor of chattels, and thus make valid a mortgage so attested, is true, then, in view of the fact that § 5206 does not specifically refer to attesting witnesses, it would follow as of course that a mortgage of chattels without the name of any attesting witness, would be equally valid. Such a conclusion would not conform to the apparent meaning of the Act in question, nor to our long-established custom of requiring attesting witnesses to instruments under seal that are required to be recorded. A deed of land, attested by one witness only, is not valid.New Haven Trust Co. v. Camp, 81 Conn. 539, 541,71 A. 788; Farrel Foundry v. Dart, 26 Conn. 376, 381;Merwin v. Camp, 3 Conn. 35, 41. A deed defectively executed does not charge a bona fide purchaser with notice of its existence. Craig Co., Ltd. v. UncasPaperboard Co., 104 Conn. 559, 568, 133 A. 673; Safford v. McNeil, 102 Conn. 684, 688, 129 A. 721;Liquid Carbonic Co. v. Black, 102 Conn. 390, 392,128 A. 514.

As our conclusions above stated are decisive of plaintiff's appeal, we do not deem it necessary to decide whether, because of the fact that the trucks described in the chattel mortgage were later burned and plaintiff received the insurance money thereon, the trucks in question were in fact replacements under § 5208.

There is no error.

In this opinion the other judges concurred.