Carpenter v. Snelling

97 Mass. 452 | Mass. | 1867

Bigelow, C. J.

The transaction between the defendant and the insolvent debtor on the sixteenth day of August, 1866, as it appears on the face of the written contracts then executed by the parties, was in effect a mortgage of the chattels now in controversy. It was a conveyance of them made to secure the payment of a loan of money at a future day, defeasible on the payment of a note given for the amount of the sum loaned. There is nothing in the facts stated in the report which tends to show that this transfer was made under circumstances which would render it invalid either at common law or as contrary to the provisions of the insolvent law. This is conceded. But it is contended by the plaintiffs that the conveyance is void as to them in their capacity as assignees because the documents constituting the mortgage were not placed on record as required by Gen. Sts. c. 151, § 1, nor was the mortgaged property delivered to and retained by the mortgagee as is required by the same section. If either of these requisitions were complied with before the plaintiffs’ title accrued on the eighth day of November, 1866, the transfer would be valid within the express provisions of the statute. It is conceded that there was no record. The point on which this part of the case turns is whether the defendant had received delivery of the articles and retained them in his possession from the time when the first publication of the notice of the mortgagor’s insolvency took place. To this inquiry the admitted facts give a clear and decisive answer. The defendant’s authorized agent took possession of the property in person on the fifth day of November, and continued substantially in the charge and custody of it until after the commencement of the insolvency proceedings. It certainly was not necessary to deliver the property to the defendant in person ; the delivery of it' to the agent was equally efficacious and operative to vest the possession in his principal. Nor was removal of the property at all essential; delivery and possession are acts which can occur irrespectively of place. If the acts are proved, it is immr terial that they were consummated at the place of residence of the mortgagor; it is sufficient if it is proved that the defendant’s agent was upon the premises where the property was situated, so that he had substantial control of it, and was at all times in such situation that he could maintain the right of his principal to its permanent custody. This we think is sufficiently shown by the facts proved at the trial. McPartland v. Read, 11 Allen, 231. A suggestion was made by the plaintiffs’ counsel that the notice of the possession and of its retention by the defendant’s agent did not give publicity to the acts of the parties, and that creditors had no notice of any change in the condition or retention of the property. But the statute requires no particular mode of taking or retaining possession, and no ceremony or formality in order to render such transaction public or notorious. It is therefore sufficient if it is shown that the delivery and possession were so made and retained as to be legally operative and effectual. There can be no doubt that such possession of the. property in controversy as was held by the defendant’s agent would have been sufficient if the question at issue was whether a sheriff’s officer had obtained and kept effectual possession of chattels adequate to maintain an attachment. Train v. Wellington, 12 Mass. 495. It is well settled that, in order to make a valid attachment, the officer must have actual permanent custody of the goods.

The only remaining question is whether the written instruments under which the defendant claims the property in dispute should have been excluded for want of sufficient stamps under the provisions of the revenue laws of the United States. It is conceded that the omission to affix the stamps which are required by law in cases where a mortgage is made to secure a debt or sum of money of the amount which was due to the defendant, was not in consequence of any fraudulent intent to defraud the revenue, but was caused solely by inadvertence or mistake. It is also indisputable that the note and the bill of parcels and the two receipts, as well as the agreement of defeasance by which the defendant agreed to reconvey the property on the payment of the sums loaned by him, all bear the requisite stamps, when regarded as separate contracts disconnected from each other. No doubt as between the original parties the legal effect of the whole transaction, as shown by the written contracts when taken together, was to vest in the defendant a defeasible title as mortgagee of the chattels. But it was not necessary in support of the defendant’s title that he should offer in evidence the contract of defeasance. It was sufficient for him to prove the bill of parcels, the note, and the receipts, and to show an actual delivery and possession of the property by law. The only paper which did not bear the requisite stamp was the contract of defeasance. It was only by the introduction of this in evidence that the title, which, as without it, was absolute in the defendant, could be shown to be constructively a mortgage. If it was rejected for the want of a stamp, on the objection of the plaintiffs, the right of the defendant to the property, upon the written documents to which no objection could be taken for the want of the necessary stamps, would be obvious and complete. We doubt very much whether the provision of the statute of the United States, (U. S. St. 1866, c. 184, § 9,) can be applied in such manner as to render contracts, which on their face bear adequate stamps, inadmissible in evidence or inoperative, by showing that they were executed in connection with another paper which is inadmissible for the want of a stamp, but which if admitted would give to them a different legal effect and operation from that which would result from them if construed by tnemselves.

But there is another view of this part of the case which leads us to the conclusion that the want of a stamp did not render the written documents offered by the defendant inadmissible. The provision of the statute of the United States already cited does not in terms apply to the courts of the several states. The language of the enactment is only that no instruments or documents not duly stamped shall “ be admitted or used as evidence in any court ” until the requisite stamps shall be affixed.^* This provision can have full operation and effect if construed as intended to apply to those courts only which have been established under the constitution of the United States and by acts of Congress, over which the federal legislature can legitimately exercise control, and to which they can properly prescribe rules regulating the course of justice and the mode of administering justice. We are not disposed to give a broader interpretation to the statute. We entertain grave doubts whether it is within the constitutional authority of Congress to enact rules regulating the competency of evidence on the trial of cases in the courts of the several states, which shall be obligatory upon them. We are not aware that the existence of such a power has ever been judicially sanctioned. There are numerous and weighty arguments against its existence. We cannot hold that there was an intention to exercise it, where, as in the provision now under consideration, the language is fairly susceptible of a meaning which will give it full operation and effect within the recognized scope of the constitutional authority of Congress.

Exceptions overruled.^†

* The provision in the U. S. St. of 1866, c. 184, § 9, is as follows: “ That hereafter no deed, instrument, document, writing, or paper required by law to be stamped, which has been signed or issued without being duly stamped, or with a deficient stamp, nor any copy thereof, shall be recorded or admitted or used as evidence in any court until a legal stamp or stamps denoting the amount of tax shall have been affixed thereto as prescribed by law.”

† A similar decision upon the last point was made at October term 1867 for Bristol, in the case of