Brigham v. Weaver

60 Mass. 298 | Mass. | 1850

This case was argued and decided at a former term.

Metcalf, J.

At common law, it was not necessary to the validity of a mortgage of personal property, that the mortgagee should have possession of the property, or that the mortgage should be recorded. But by St. 1832, c. 157, § 1, it was enacted, that no such mortgage, thereafter made, should “ be valid against any other person than the parties thereto, unless possession of the mortgaged property be delivered to, and retained by the mortgagee, or unless the said mortgage be recorded in the office of the clerk of the city or town where the mortgagor shall reside at the time of making the same.” In the same year, a statute was passed in New Hampshire, in the same words. Under that statute, it has been decided there, that the removal of the mortgagor from the town in which he resided when the mortgage was made, taking with him the mortgaged property, and retaining possession of it, does not make it necessary that the mortgagee, in order to save his rights under the mortgage, should cause it to be recorded in the town to which the mortgagor removes. Hoit v. Remick, 11 N. Hamp. 285. And we cannot doubt the soundness of that decision.

When our statutes were revised, the provision in St. 1832, e. 157, § 1, was incorporated into the statute of frauds, (Rev. Sts. c. 74, § 5,) in these words: “ No mortgage of personal property, hereafter made, shall be valid against any other person than the parties thereto, unless possession of the mortgaged property be delivered to, and retained by the mortgagee, or unless the mortgage be recorded by the clerk of the town where the mortgagor resides; ” omitting the words, “ at the time of making the same,” which were contained in the previous statute. And in St. 1843, c. 72, § 2, on which the question in this case arises, it is enacted, that “ every mortgage of personal property, whenever the mortgagor shall retain possession thereof, shall be recorded as well by the clerk of the town where the mortgagor resides, as by the clerk of the town in which he principally transacts his business, or follows his trade or calling.” This last statute, and Rev. Sts. c. 74, § 5, being in pari materia, must doubtless be construed alike, as to the place or places of recording mortgages. If the removal of a mortgagor’s residence to another town makes it necessary to the mortgagee’s safety, that the mortgage shall be recorded in that town, so must the removal of the mortgagor’s place of business to another town make it necessary that the mortgage should be recorded there. And if the mortgagor removes his residence to one town and his place of business to another, the mortgage must be recorded anew in both those towns, as often as such removals shall be made. This would be burdensome and hazardous to the mortgagee, as it would subject him (in the language of the court, in Hoit v. Remick, before cited) “ to the inconvenience, if not impracticability, of the constant vigilance and ceaseless watching which would be requisite to guard and secure his interests, if he were obliged to record his mortgage in every town into which the mortgagor might see fit to remove, with the property, to reside; and that too before his creditor should seize the property by process of law, or the mortgagor should pass the title to it, by way of sale, to some innocent purchaser.” Besides; when a mortgagee has once recorded his mortgage, according to law, he has acquired a perfect mortgage title to the property; and he is not bound to do any further act, in order to preserve that title, unless plainly required by law. But we cannot find that he is so required by the statutes last cited. They require him to record his mortgage in the town where the mortgagor resides, and in the town where he transacts his business. One record, in each of those towns, is all that is expressly required, and nothing further is necessarily implied.

The commissioners, who revised our statutes, reported § 5, of c. 74, in the very words in which it now stands on the statute book; omitting, as we have seen, the provision, in St. 1832, that the mortgage should be recorded in the town “ where the mortgagor shall reside at the time of making the same.” They assigned no reason, in their notes, for this omission, and we cannot know, with certainty, what reason induced the legislature to sanction the change which was made in the law by that omission. It may have been supposed that a record, in the town where the mortgagor resided when the mortgage was made, would not, in all cases, give the most useful notice to third persons. For instance; it may have been supposed that if a mortgagor, before the mortgage is recorded, should remove into another town, taking the mortgaged property with him, it would be better that the record of the mortgage should be made in the town to which he had removed, than in the town where he resided when it was made. But whatever was the reason of this alteration of the statute of 1832, the alteration itself furnishes, in our judgment, no legal ground for the defence set up by the present defendants.

In the case of Phipps v. Davis, 4 Law Reporter, 225, we find that the court of common pleas decided, under Rev. Sts. c. 74, § 5, t’iat a mortgagee, who had recorded his mortgage in the cown where the mortgagor resided, but from which he after-wards removed his residence, need not record it anew in the town to which the mortgagor removed. This, we have no doubt, was a correct decision; and, as we have before stated, the construction of Si. 1843, c. 72.§ 2. as to the removal of the mortgagor’s place of business, must be the same as that oi Rev. Sts, c. 74, as to the removal of his residence.

Defendants defaulted.