73 Vt. 322 | Vt. | 1901
The mortgage of June 1, 1897, from Weed and wife to the plaintiff, was executed both as a mortgage on real estate and as a chattel mortgage. The title to the property mortgaged was in Mrs. Weed. The mortgage was recorded the day after its date in the town clerk’s office of Lowell, in the records of mortgages of personal property, but it was never recorded in the land records. The record of the certificate of the oath did not show that Mr. Weed subscribed and swore to the affidavit appended to the mortgage. The mortgage was conditioned for the payment by Weed and wife of a note of even date therewith for $925.89, signed by them and the plaintiff, and payable to the United States Banking and Trust Com
To constitute a mortgage on personal property valid against any person except the mortgagor, his executors and administrators, unless the possession of the property is delivered to and retained by the mortgagee, the mortgage must be executed in accordance with the provisions of Chapter 108 of Vermont Statutes, and recorded in the office of the clerk of tlie town in which the mortgagor resides at the time of making the mortgage, or, if he resides out of the state, in the town where the property is situated: V. S. 2251, 2252; Longey v. Leach, 57 Vt. 377.
By section 2253, each mortgagor and mortgagee, or, in the absence of the mortgagee, his agent or attorney, shall make and subscribe an affidavit as therein specified, which affidavit with the certificate of the oath signed by the authority administering the same, shall be appended to the mortgage and recorded therewith. Such an affidavit and such a certificate are made essentials to the validity of the mortgage, and they to
If the chattel mortgages of 1897 were duly executed in all respects, but the affidavits, or the certificates of the oath signed by the authority administering the same, were omitted from the record, the mortgages were not recorded in law. In Sawyer v. Adams, 8 Vt. 172, it was held that if a deed, as it appears on the record, contains defects which would render it void, if they existed in the original, although noi such defects were in the original, such deed is treated as not recorded.
The mortgage of June 1, was also executed as a mortgage of real estate, but it was never recorded in the land records. Its registry in the records of mortgages of personal property was not constructive notice of the mortgage of real estate: Sawyer v. Adams, supra. But it is contended by the plaintiff that the leaving of it in the town clerk’s office for record was constructive notice of the mortgage of real estate, even though it was never in fact recorded in the land records. However, this question is not before us; for it does not appear that it was left there for record as a mortgage of real estate. It may have been left for record only as a chattel mortgage, in which case, the clerk would have no authority to' record it as a mortgage of real estate: Blair v. Ritchie and Warden, 72 Vt. 311. To be constructive notice of a mortgage of real estate, it must have been left for record as such.
The evidence tended to show that the lumber on which the plaintiff had a mortgage, and the lumber on which the defendant had mortgages, were so mixed by Weed, without the fault of the plaintiff or the defendant, that they could not be separated; and the court charged that if that was so, and the three car loads that defendant had in 1898, came from the commixture, the plaintiff could not recover for any part thereof, unless the defendant took more than his proportionate share of the whole commixture; but if he did, he would be liable for the excess that was covered by the plaintiff’s mortgages, provided the plaintiff did not give Weed license to sell the stock of that year. To the charge on this subject, as far as it related to. any of the stock of 1897 that was carried over into the stock of 1898, the plaintiff excepted. The charge on this point was broad enough to say, in effect, that such license if found would be effective to. release the lumber covered by the stumpage mortgage, if the defendant had any of it; to which defendant excepted, claiming that as that mortgage was under seal, a parol license would not have that effect.
The plaintiff’s testimony tended to show that some thirty thousand feet of spruce boards stacked in the millyard were carried over from 1897 into the stock of 1898, and the testimony on the part of the defendant tended to show that the plaintiff gave Weed unconditional parol license to sell the stock of the latter year. The jury found that he gave such license, and on that ground alone found for the defendant as to that lumber.
So much of the stock of 1897 as was carried over into the stock of 1898 became and was a part of the stock of that year. The evidence tending to show the license, made no distinction in that regard, and the court properly made none in the charge.
The defendant testified that when he took the three carloads he did not have in mind his mortgages. The court charged that the mere fact that the defendant did not then have his mortgages in mind, did not disentitle him to stand on whatever rights he had thereunder and to the avails of the lumber that he was talcing to be applied on his mortgage debt; and that he was to be taken as acting under his mortgages, although he did not have them in mind, and stood just as well as though he had them in mind. To this the plaintiff excepted, for that if there was more than enough lumber to pay the defendant’s claim the plaintiff could hold the balance. The record states that the defendant applied the avails on his debt secured by the mortgages and that they did not fully pay the same; hence this exception is without force.
Judgment affirmed.
