213 Mass. 210 | Mass. | 1913
This is an action for the conversion of thirty-three knitting machines, admittedly personal property. The presiding judge
The facts proved by the plaintiff were as follows: The machines were manufactured by the Wildman Manufacturing Company and sold to the Worcester Knitting Mills under a conditional contract of sale at some time before July 1, 1907. This conditional sale was not fully complied with until after the conversion here complained of, but the machines were not retaken by the vendor. On July 1, 1907, these machines were mortgaged to the plaintiff by
It is settled that a vendee of personal property in possession of it under a conditional contract of sale has a special property in it which he can mortgage. Chase v. Ingalls, 122 Mass. 381. Dame v. Hanson & Co. 212 Mass. 124. Neither of the mortgages in the case at bar was recorded within the time fixed by statute. R. L. c. 198, § 1. Under these circumstances, if either one of the two mortgagees obtained delivery of the property and thereafter retained it, his mortgage was valid. Carpenter v. Snelling, 97 Mass. 452. Tatman v. Humphrey, 184 Mass. 361, 362. Where a mortgagee having by virtue of his mortgage a right of possession takes possession, the property has been delivered to him within the meaning of the statute. Tatman v. Humphrey, 184 Mass. 361, 362. Humphrey v. Tatman, 198 U. S. 91.
The plaintiff’s evidence showed that although the real estate of the Worcester Knitting Mills remained in its possession until the foreclosure sale on January 3,1910, the defendants took possession of the machines here in question “in the early part of December,” through one Crane, who was sent and paid by them for so doing. The plaintiff’s contention is that her evidence warranted a finding that at the request of the plaintiff’s husband Crane (hired by the defendants to keep possession for them) agreed to hold and did thereafter hold possession of the machines for the plaintiff, and that thereby the plaintiff’s mortgage became and the defendants’ ceased to be valid.
The provision of the statute (R. L. c. 198, § 1) is that if “the property mortgaged has been delivered to and retained by the mortgagee,” the mortgage is valid “against a person other than
The plaintiff’s position in the case at bar is not bettered by the fact that the plaintiff’s agent (who procured the agreement by Crane to hold for the plaintiff in violation of the duty owed by him [Crane] to the defendants) was treasurer, president and general manager of the Worcester ¡Knitting Mills. A delivery to one mortgagee of property taken out of the legal rightful possession of another mortgagee by the joint wrongful act of the mortgagee first named above and the mortgagor in our opinion is not a delivery within R. L. c. 198, § 1.
It becomes unnecessary to consider the other difficulties which lie in the way of the maintenance of the action on the evidence introduced by the plaintiff.
Exceptions overruled.
Lawton, J.