225 Mass. 491 | Mass. | 1917
The trial judge found the following facts: The defendant Bloomberg was the lessee of a building in Brockton under a written lease given in 1911 for a term of five years with an option to renew it for five years more, and the lease was duly recorded with Plymouth County deeds. In January, 1915, Bloom-berg, who was in possession of the premises and had sublet portions
As against the defendant Bloomberg, the security agreement plainly is good. Leasehold estates may be mortgaged by assignment of the term to the mortgagee, subject to a proviso for reassignment on payment of the money advanced. In view of the terms and provisions of the security agreement in question, it may be regarded as a mortgage for the purposes of this case. See Williams v. Bosanquet, 1 Brod. & Bing. 238; Breese v. Bangs, 2 E. D. Smith, 474. The controlling question is whether it is a mortgage of "personal property” within the meaning of R. L. c. 198, § 1.
The original of that statute is St. 1832, c. 157, which was entitled “An Act to prevent fraud in the transfer of personal property.” That statute provided “no mortgage of personal property, hereafter made, shall be valid against any other person than the parties thereto, unless possession of the mortgaged property be delivered to, and retained by the mortgagee, or unless the said mortgage be recorded,” etc. This was re-enacted as Rev. Sts. c. 74, §5. In Marsch v. Woodbury, 1 Met. 436, where it was contended that a defeasible assignment of a legacy was a mortgage of personal property within the provisions of this statute, it was said by
The contention of the defendants that at common law a term for years is “personal property,” is not accurate. It is true that originally a term for years was regarded as a chattel "interest in real estate, and that only freeholds were included in “realty” as being the only things specifically recoverable in the King’s Court. But those interests in lands which were reckoned as chattels were distinguished by the name of chattels real because they concerned realty; while the name of chattels personal was given to movable goods “because for the most part they belong to the person of a man, or else for that they are to be recovered by personal actions.” See Williams on Real Property (22d ed.) 25 et seq. It is unnecessary to trace the changes that later occurred in describing property as consisting of real and personal estate instead of by the old terms, lands, tenements and hereditaments, and goods and chattels; or to consider whether the Legislature had these distinctions in mind. It seems obvious from the consideration of this and other registration statutes at least, that when providing that chattels real, like leases of real estate, should be recorded, it was intended that they should be recorded in the registry of deeds. See R. L. c. 127, § 4, providing for the recording of a lease for more than seven years. And compare R. L. c. 129, § 1, and c. 167, § 59.
Without deciding whether it was necessary for the plaintiff to record his mortgage in the registry of deeds, we are of opinion that it was not a mortgage of personal property within the provisions of R. L. c. 198, § 1, and that it is valid against the defendants. It follows that the entry must be ,
Decree affirmed with costs.