Jewett v. Preston

27 Me. 400 | Me. | 1847

The opinion of the Court was drawn up by

Whitman C. J.

The property of Preston, on his becoming a bankrupt, vested in his assignee, who, instantly thereupon, became entitled to possession of it and might have taken it from the bankrupt, or any one else in possession of it. In fact, the possession of it by the bankrupt, was the possession of the assignee, the bankrupt being but the keeper of it for the as-signee. It was not necessary it should be inserted in the bankrupt’s schedule in order to give the assignee such right. The bankrupt act, of 1841, <§> 3, is explicit to this effect. The right to the property, for the conversion of which this action was brought, and which was never out of the actual custody of Preston, if the defendant, Francis, had no right to it, might be sold by the assignee, under the order of Court obtained for the purpose; and it appears, that the assignee had authority to sell, and did sell whatever right he had to it to the plaintiff. The plaintiff, thereupon, became entitled to the possession of it, the same as the assignee had before been, if Francis had no right to it. Whatever right the assignee had, before the sale, was divested out of him, and if his right was a perfect one to the whole of the property unincumbered, it could not, by the sale, have vested in any one else but the plaintiff. By that act nothing by way of implication or otherwise, could have been vested in, or could be considered as reserved to, .any person, other than the vendee named, unless such other person had become entitled thereto before Preston became a bankrupt.

Now it remains to be ascertained, whether the defendant, Francis, had acquired a right to the property before Preston became a bankrupt. The mortgage relied upon by him bears date Jan. 10, 1839; but his letter, under date of Sept. 4, 1843, shows that at that time, no such mortgage had ever been delivered to him, or to any one to his knowledge for his use ; and there is no proof in the case tending to show that he was mistaken. The law is well settled, that every deed must be considered as taking effect from the time of its delivery. Francis, then, at the last named date, had no title to the property. Preston, therefore, had not then been divested of his interest in it by virtue of the mortgage deed, and it must have vested in his assignee. But if the mortgage deed had been seasonably delivered, there are still other difficulties in the way of its becoming effectual. It purports to have been made for the purpose of securing the payment of two notes of hand — one for seven hundred dollars, bearing date July 13th, 1828, and one for five hundred dollars, bearing date Jan. 31, 1835. Now the letter of Francis, before alluded to, shows that he never had any such notes; and his deposition, which was properly admitted as containing what may be deemed to be his admissions, is to the same effect. He says the notes he had were three in number, viz. one for eight hundred dollars, one for one thousand dollars, with five hundred dollars paid and indorsed on it, and the third for seven hundred dollars; neither of them bearing date as stated in the mortgage.

Thus it appears, that it is unimportant to consider, whether the mortgage was fraudulent as against the claims of bona fide creditors, or against the policy of the bankrupt law. Whatever was said and done therefore, at the trial, in reference to those matters, was irrelevant, and may be laid out of the case, as the mortgage was from the beginning inoperative. The instructions and rulings, having reference to the merits of the case, cannot be deemed otherwise than correct; and the instructions requested, and not given, were properly withheld. They could not have been warranted by the true effect of the evidence bearing upon the nature of the case.

Judgment on the verdict.