101 Me. 218 | Me. | 1906
Trover for a piano. In ;July, 1904, the plaintiff delivered the piano to the defendant, who at that time executed and delivered to the plaintiff a lease or agreement in regard to the same, reciting that she had paid ten dollars for rent until August 7, 1904, and was to pay eight dollars a month for the use of the same, as long as she hired the piano, until $300 and interest on unpaid balances of that sum was paid, and that, if she fulfilled her agreements till the payments of rent amounted to $300 and interest, the piano should become her property. This instrument was never recorded. The defendant paid as agreed up to February', 1905, when the piano was destroyed by fire. On December 28, 1904, the defendant mortgaged the piano to one Means, who recorded his mortgage but never took possession of the property. The presiding justice ordered a nonsuit' and the plaintiff excepted. By agreement of the parties, if the non-suit was incorrectly ordered, the plaintiff is to have judgment for $250.
The so called lease was in substance a conditional sale, not valid, except between the original parties, without record. R. S., chapter 114, section 5. The plaintiff’s mortgage of the piano, not simply of
This case is not to be confounded with cases against a mortgagor, who has sold only his interest in the mortgaged property, as in White v. Phelps, 12 N. H. 382, or with cases against a vendee of the mortgagor, as in Dean v. Cushman, 95 Maine, 454, who obtains by his purchase a right of possession against all the world except the mortgagee.
Exceptions sustained.
Judgment for the plaintiff for ‡250.