117 Me. 95 | Me. | 1918
This case comes up on the following agreed statement of facts.
Trover for the conversion of a DeLaval Cream Separator. July 13, 1915, plaintiff delivered to said Maine Creamery Association the separator in question upon a conditional sale agreement embodied in three several conditional sale notes payable respectively October 1, 1915, Dec. 1, 1915 and Feb. 1, 1916, of like tenor with the following:
“$200.00 • Bangor, Maine, July 13, 1915.
On the 1st day of October, 1915 for value received, I promise to pay to the order of the DeLaval Separator Company two hundred and no-100 Dollars, with 6 per cent interest, at the (bank) Eastern Trust and Banking Co. of Bangor, Maine. This note is given for DeLaval Cream Separator, Style No. 60 Serial No. 1,587,850.
“The express condition of the sale and purchase of said machine and the giving of this note (or notes) to secure the full payment therefor is that the title, ownership or possession does not pass from the said payee or his (or their) assigns, to the maker of this note (or notes) or his (or their) assigns, until all notes have been fully paid and satisfied; and the drawers and endorsers severally waive presentment, protest and notice of protest and non-payment of this note.
No. 1. Maine Creamery Ass’n
P. O. Address.............. By J. D. McEdward, Treas.”
The note last due was never recorded and is not in issue in this case. The other two notes were recorded in the City Clerk’s office in Bangor, Maine, where by law they were required to be recorded, Jan. 3, 1916 at 2.15 P. M. On Jan. 13, 1916, said Maine Creamery Association duly filed in the U. S. District Court for the District of Maine its petition to be adjudicated a bankrupt, and defendants were in due course duly appointed and qualified as trustees of its estate in bankruptcy.
In the Public Laws of 1891, Chapter 11, a further amendment was made to R. S., Chapter 111, the language of which is significant in its apparent purpose to note the difference between a personal mortgage and conditional sale, namely: “No agreement that personal
It is not because these amendments are made to Chapter 111, instead of the chapter relating to personal property, which is important as showing the legislative intent to continue the distinction between personal mortgages and conditional sales, but the design of the language employed to give expression to the amendment found in Chapter 111 of the laws of 1891. It does not say that “no sale of personal property,” but “no agreement” of sale, shall'be valid unless recorded. A mortgage is a sale, to the extent of carrying title, not an agreement to sell. A Holmes note is an agreement to sell, and conveys no title. This is a fundamental distinction and has always been so regarded by the courts. The legislature in its recording statutes, undoubtedly intended to maintain this distinction; hence the recording statute applying to mortgages was not intended and does not apply to the recording of a Holmes note, nor any other instrument of a similar nature. The plaintiff’s sale, therefore, is not invalid for want of record, under the ten day provision.
The statute relating to the record of personal mortgages, with all amendments incorporated, is now found in R. S., Chapter 96; while the statute relating to the record of agreements to sell personal property, with all amendments incorporated, is found in R. S., Chapter 114. The former statute, among other things, provides that any mortgage of personal property executed after the United States Bankruptcy Law should go into effect, should not be valid against a trustee unless and until possession was taken, or a mortgage recorded within ten days after the date thereof. But, as already seen, this statute does not apply to the recording of a Holmes note. Hence the trustee in bankruptcy in this case gains no advantage of title to the personal property involved by failure of the plaintiff claiming title therein to record his notes within ten days.
The notes in question, however, were recorded before the creamery Association was adjudicated bankrupt. Hence the question, was the sale manifested by these notes, in any other respect, in "violation of the United States Bankruptcy Act? The sale was made and these notes dated July 13, 1915. The Creamery Association was adjudi
1. These notes, having been recorded prior to the filing of the petition in bankruptcy, are valid as against these defendants as trustees in bankruptcy. U. S. Bankruptcy Act, Section 47a, as amended in 1910. In re Kuse, 234 F., 470. In re Marriner, 220 F., 542, (Dist. of Maine). In re Farmers’ Co-Operative Co., 202 F., 1005. 2. Neither are they voidable preferences under the bankruptcy act. U. S. Bankruptcy Act, Section 60, as amended in 1903 and 1910. Carey v. Donohue, 240 U. S., 430, 437. Hawkins v. Dannenbury Co., 234 F., 752. Debus v. Yates, 193 F., 427. (a) Because these Holmes notes do not constitute a transfer by the bankrupt of any of his property. Campbell v. Atherton, 92 Maine, 69. Lane v. Borland, 14 Maine, 81. Motor Car Co. v. Hamilton, 113 Maine, 63. Guth Piano Co. v. Adams, 114 Maine, 390. Nichols v. Ashton, 155 Mass., 205. In re Farmers’ Co-Operative Co., 202 F., 1005. Big Four Implement Co. v. Wright, 207 F., 536. Baker Ice Machine Co. v. Bailey, 209 F., 603. Kebbee v. John Deere Plow Co., 190 F., 1019. Claridge v. Evans, (Wis.) 118 N. W., 198. John Deere Plow Co. v. Edgar Farmer Store Co., (Wis.) 143 N. W., 194. Bailey v. Baker Ice Machine Co., 239 U. S., 268. (h) Because there is nothing to show that the Maine Creamery Association was insolvent on January 3rd, 1916, when these notes were recorded. In re Chappell, 113 F., 545. Kimball v. Dresser, 98 Maine, 519.
While the decision of this case undoubtedly depends upon whether the notes here involved should have been recorded under R. S., Chapter 96, relating to the record of personal mortgages, or under R. S., Chapter 114, relating to agreements of sale, and is discussed only upon this ground by the defendants in their brief, we have, nevertheless, briefly alluded to the reasons why the notes as recorded are not rendered invalid by any of the provisions of the bankruptcy act. In accordance with the stipulation in the agreed statement, the entry must be,
Judgment for the plaintiff for $Ifl0 and costs.