McNally v. Bailey

Allen, J.

The memorandum, in which the lien upon the piano was reserved by the defendant, was not recorded in the town-clerk’s office, and was not valid against subsequent purchasers without notice. Laws 1885, c. 30. The sale by Foster, the conditional vendee, to Tibbetts & Wilkinson, and his taking a mortgage for security, and his subsequent assignment of the mort- ■ gage to the plaintiff, made the plaintiff a subsequent purchaser, and his title and right of possession of the piano, if acquired without notice of the defendant’s lien, was not thereby defeated. The plaintiff had no actual notice of the lien, and he was not put upon inquiry so as to be chargeable with constructive notice, unless the recital in the mortgage, that there was due on the piano §240, which the mortgagees had assumed to pay, would have led a man of ordinary prudence to inquire and ascertain the fact of the defendant’s lien. Whether a man in the exercise of ordinary care and diligence would, under the same circumstances, have made the inquiry and learned the existence of the lien is a question of fact, and it is not found in the case that the plaintiff was charged with the duty of making the inquiry, or that he was in any fault or negligence in not making it. The finding that he took the mortgage in good faith, without knowledge or notice of the defendant’s lien, is a finding that he had neither actual nor constructive notice of it. There being no record of the memorandum of the conditional sale in which a lien was reserved, and the plaintiff being a subsequent purchaser without notice, actual or constructive, the lien is not valid against him, and cannot be made a defence against his right and title.

Judgment for the plaintiff.

Bingham, J., did not sit: the others concurred.