206 A.2d 854 | Me. | 1965
On August 10,1959 the plaintiff commenced an action against the defendant for an alleged conversion of chattels by writ sounding in trover returnable to the September term of the Superior Court within and for the County of Piscataquis. On March 23, 1962 the matter was submitted to the determination of the justice below upon an agreed statement of facts. Decision having been rendered for the defendant, the plaintiff now appeals.
The material facts agreed upon may be restated as follows: On February 18, 1958 the Piscataquis Contracting Company gave a chattel mortgage to one Gellerson covering
R. S., 1954, Chap. 178, Sec. 2, which, although since repealed, was in force and governed the rights of the parties in 1959 provided in part:
*56 “The clerk shall record all such mortgages * * * in a book or books kept for that purpose, noting therein and on the mortgage * * * the time when it was received, and it shall be considered as recorded when received. * * * . ” (Emphasis ours.)
The requirement of noting the time of receipt on the clerk’s record was essential to an effective and valid recording. Monaghan v. Longfellow (1889), 81 Me. 298, 17 A. 74; see Stafford v. Morse (1902), 97 Me. 222, 227, 54 A. 397, 399. In Monaghan the clerk had the original mortgage in his possession with the time of reception noted upon it and the court held that the notice thus afforded was binding on the subsequent attaching creditor. The opinion made it clear, however, that the attempted recording itself was incomplete and null and void. In the instant case, even though we were to assume that the time of receipt was noted on the original Gellerson mortgage, there is no suggestion that the clerk had that mortgage in his possession either at the time the defendant accepted his mortgage or later when he took delivery of the mortgaged items from the mortgagor. As between the plaintiff and the defendant, therefore, the plaintiff’s mortgage must be viewed as though never recorded.
This defendant received delivery of the articles here in controversy from his mortgagor in a non-tortious manner. The possession of personal property is deemed prima facie evidence of title and the right to possession. One who claims adversely has the burden of showing a right to immediate possession superior to that of the one in actual possession. Stevens v. Gordon (1895), 87 Me. 564, 567; 33 A. 27; James v. Wood (1889), 82 Me. 173, 177, 19 A. 160, 161; see State v. Mitchell (1955), 150 Me. 396, 397, 113 A. (2nd) 618, 619.
With what evidence does the plaintiff seek to overcome the prima facie title of the defendant? He shows the giv
The justice below rested his decision for the defendant on the ground that the plaintiif was estopped to proceed with his action by the fact of his agreement with the referee in bankruptcy and the defendant. With this conclusion we concur. That equitable estoppel can defeat recovery for alleged conversion in appropriate circumstances is clear. Rogers v. Street Railway (1905), 100 Me. 86, 90, 60 A. 713, 714. One may be bound by his conduct and, where there is a duty to speak, by his silence. What were the circumstances here? The referee made a single offer to plaintiff and defendant simultaneously. In substance it was that each should abandon his claim of priority based upon mortgage and should accept the lesser amount proffered by way of compromise. Each was to then proceed by proof of claim as on an unsecured debt. It is inconceivable that the offer did not hinge on the acceptance thereof by both the plaintiff and the defendant. We are satisfied that the referee in bankruptcy could not have intended otherwise, and the plaintiff and defendant must reasonably have so understood. In accepting the offer, therefore, the defendant had a right to assume that the plaintiff by his ac
Appeal denied.