37 N.H. 428 | N.H. | 1859
If the plaintiff was induced to surrender the note in suit by the misrepresentation and fraud of Guy Gray, one of the signers of the note, it is plain that
It is contended, however, that the mortgage taken by the plaintiff from Guy Gray, upon the giving of the new note, did not convey any specific articles, and was therefore void; and hence that the representations of Guy Gray, whether true or false, were immaterial.
The mortgage was of a lot of household furniture, not of any particular articles, but of a certain number of beds, chairs, &c., in the house, without any further designation. The kind of articles is given, and their number and the place where they are kept, but there is no specific and particular description hy which to identify them from other like articles which were in the house. The question then is, would this have been a good mortgage, as between the mortgagor and mortgagee, had Guy Gray been the owner of all the furniture in the house, as represented by him ?
In Hayward’s Case, 2 Coke 38, it is said, if I give you one of my horses in my stable, there you shall have election. And if one grant to another twenty loads of maple, to be taken in his wood, there the grantee shall have election. And in Palmer’s Case, 5 Co. 24, the court say, if a man grant six hundred cords of wood out of a large wood, the grantee hath election to take them when and in what part of the wood he pleases, without any appointment of the grantor. Cro. Eliz. 819; Moore 691; Jones 276; Hobart 179.
The doctrine is the same as that which prevails in the conveyance of real estate — that the grant shall be taken most strongly against the grantor.
When personal chattels are mortgaged, delivery to and possession by the mortgagee are not essential to the validity of the mortgage. Registration in the office of the
In the sale of personal chattels, the general rule is that delivery of possession is necessary, as against all except the vendor; but between the vendor and vendee the property will pass without delivery. Shumway v. Rutter, 7 Pick. 56; Ricker v. Cross, 5 N. H. 570; Felton v. Fuller, 29 N. H. (9 Foster) 121, 129.
The cases which show that trespass and trover cannot be maintained until the property is separated and identified, depend upon the principle that property in the particular articles is indispensible, in order to sustain those actions. If specific articles are alleged to have been converted or injured, the plaintiff must show such articles to be his. But in the case of a recorded mortgage under the statute, no formal delivery being required, such particular identification is, as between the parties, unnecessary. And the question in this case is, not as to the plaintiff’s right to maintain trespass or trover, but as to the effect of the mortgage.
And we think that, as between the mortgagor and mortgagee, had the representations of Guy Gray been true, the plaintiff would have held a good mortgage, which would have given him the power to enter the house and take the property mortgaged. He would have had the right to select the number of beds, chairs, &c., stated in the mortgage. The mortgagor had conveyed to him the articles by number; they had been delivered to him by the delivery and record of the mortgage, and this delivery, so far as the parties were concerned, was as binding as if the plaintiff had taken them into actual possession. The mortgagor had nothing further to do to make the mortgage perfect, and the plaintiff had the right to make a selection of the articles.
The mortgage, then, so far as the instrument itself went, was legal between the parties; and the representa
Judgvient affirmed..
