142 Mass. 379 | Mass. | 1886
The plaintiff concedes that the mortgage given by Littlefield was not recorded as required by the Gen. Sts. c. 151, § 1, which, among other things, provide that “ unless a mortgage is so recorded, or the property mortgaged is delivered to and retained by the mortgagee, it shall not be valid against any person other than the parties thereto.” In order to show that there was an existing mortgage which would prevail against the defendant, the plaintiff must prove that the property mortgaged was “ delivered to and retained by the ” plaintiff. The property was within the exclusive possession and control of Littlefield, the mortgagor, until October 1, 1881. At that time, Castleman came to Boston, as the authorized agent of the mortgagee, to take possession of the wagons for breach of the condition of the plaintiff’s mortgage; and on October 1, 1881, with the consent of Littlefield, and acting under his authority from the plaintiff, he “ assumed the management and control of the mail service under said contract, and continued it until after the attachment.” Littlefield remained to assist him, the wagons continued to be used as before in said service, but under Castleman’s control. The agent of the plaintiff was also agent of one Boone, who was the contractor with the United States government to carry on the United States mail service in Boston. Littlefield was sub-contractor under Boone, and failed to perform his contract, and Castleman, as the agent of Boone, came to Boston to take from Littlefield the possession, control, and management of the mail service. It was essential, in order to avoid a breach of the contract, to keep these wagons in constant use in the mail service, and they were so used.
The presiding judge found at the trial that Littlefield, at the time of the attachment, was in the actual possession and use of the property, subject to the direction and control therein of an agent of the plaintiff, authorized thereto by the plaintiff.
This case differs from that of Carpenter v. Snelling, 97 Mass. 452, in one important particular, although in other respects it is similar. In that case, the agent of the mortgagee went to the
Exceptions overruled.