25 Conn. 301 | Conn. | 1856
The only question made before us in this case, respects the validity of the mortgage from S. W. Allis to Elliott. Its form is confessedly unexceptionable; but various objections to it have been taken by the plaintiff, arising on the facts found by the committee These objections will be examined in the order in which they have been presented.
1. It is found that the mortgagor remained in possession of the property embraced in the mortgage, from the time of its' execution to the appointment of the plaintiff as trustee; and the plaintiff claims, first, that that circumstance, by the settled law of this state, in regard to the unexplained retention of the possession of personal property by the vendor, rendered the mortgage fraudulent and void. In answer to this objection, it is claimed that the mortgage is rendered valid by the provisions of the fourth section of the act against fraudulent conveyances. (Stat. 571, tit. 20,) notwithstanding such retention of possession by the mortgagor That section provides that “ whenever the occupant of any dwelling-house, having a family, shall-mortgage the household furniture used by him
2. The mortgage in question purports to convey different kinds of furniture, and a specified number of each kind. It appears that it specified a greater number of some of these kinds, and a less number of others, than the mortgagor owned. The plaintiff objects that it is therefore void as to both of these kinds for indefiniteness and uncertainty as to
3. We are strongly inclined to the opinion that as against the plaintiff, the mortgage in question, under the circumstances in which it was executed, is not liable, within the true meaning of the seventh section of the act of 1853, for the relief of insolvent debtors, &c. (Statutes, p. 515,) to the objection made by the plaintiff, that it was not taken at the time when the endorsement, which it was intended to secure, was made. But it is not necessary to decide that point, because it is found that it was not made by the mortgagor with a view to his insolvency, or while he was in failihg circumstances, according to the construction which we have put on that act, and therefore it is not one of those conveyances to which the clause above alluded to in the seventh section of it, applies. (Utley and al. v. Smith and al., 24 Conn. R., 290.) Nor is this conveyance liable to the objection raised against
The superior court is therefore advised, that the mortgage should be sustained as to those several classes of articles where the number of them owned by the mortgagor did not exceed that specified in the conveyance, and held void for the residue.
In this opinion, the other judges, Waite and Hinman, concurred.
Decree accordingly.