Lathrop v. Blake, 23 N.H. 46

23 N.H. 46 | Superior Court of New Hampshire | 1851

Woods, J.

It has long been the declared doctrine of this court, that a sheriff, who has seized goods upon mense process, or upon execution, has a special property therein; and it is founded upon his responsibility for the safe custody of them. Poole v. Simonds, 1 N. H. Rep., 289; Odiorne v. Colley, 2 do., 66. A similar doctrine is holden. in other jurisdictions. 12 Johns. Rep., 408; 6 do., 195 ; 2 Saund. 47.

And it is entirely clear that the action adopted in the present case is a proper form of remedy for redress of the injury complained of, if the attachment be regarded as a valid one, and the property as belonging to Tufts at the date of the attachment; for in that case the plaintiff would have acquired a special property in the machinery, as well as a right to the immediate possession of it, which would enable him to maintain trover. Odiorne v. Colley, before cited.

The, case finds that the property was attached by the' plaintiff, and a copy of the writ and officer’s return was left with the town clerk of Alstead, in conformity with the provisions of the Rev. Stat., chap., 184, § 14.

Whether the leaving of such copy with the town clerk alone, without first otherwise attaching the goods, will constitute a sufficient and valid attachment of personal chattels, or whether the leaving of a copy with the town clerk is only equivalent to retaining the actual custody of the goods attached by the officer, or his agent, after a sufficient attachment has been made, and can have that effect only, are questions which may deserve consideration when they arise, but which need not be determined at this time.

Here the officer has returned an attachment of the property, and that is equivalent to a return of all the facts and acts done which are required to constitute a valid attachment of personal property; and that is sufficient, and in the absence of fraud, is conclusive of the fact of the attachment. Brown v. Davis, 9 N. H. Rep., 76.

We are inclined to think that the case furnishes competent evidence of a conversion. Here was an actual use and exercise of ownership over the property by the defendants, after the attachment, under a claim of a right of property, and right of possession. And the claim was asserted, and the right exercised at the time of the demand made by the officer. The works were managed, and the property was claimed by both of the defendants. So the plaintiff is entitled to recover unless the property is shown to have passed by the deed of Tufts to Page, or of Tufts to the Cheshire bank.

But we regard the deed of mortgage from Walter Tufts to Calvin Page, of January 9,1844, as being a valid mortgage, conveying to Page a valid title to all the personal property described therein.

We think the exceptions taken to its validity cannot prevail. Its validity is questioned and excepted to upon two grounds.

The first is that the mortgage was given to Page to secure a debt which belonged and was due to the Cheshire bank. And the second, that the mortgage was not accompanied by the oath of the mortgagee. At the date of the mortgage, Page was acting as the agent of the bank, ££ with full power to dispose of the interest of the bank in the property belonging to the bank, both real and personal, at the Paper Mill Village, so called, in Alstead. And in the name of the bank, and for their benefit, to make, execute, &c., any deed or deeds of all or any portion of the real estate of said bank in said village, and in general to manage and dispose of the interest of the bank in said property at his best discretion.”

With these plenary powers, Page, it would seem, conveyed the mill and machinery to Walter Tufts in the name of the bank, and thereupon Tufts executed his five promissory notes to said Page or bearer, for the benefit of the bank, together with a mortgage of the machinery, accompanied by the oath of Tufts and Page, in the usual form, verifying the justice of the debt as being honestly due and owing from Tufts to Page. Mow how stands the fact ? Who was the mortgagee in this case, and to whom was the debt due; and who should have taken the oath required to render the mortgage valid ?

It is not doubted, that Page, acting under the broad powers conferred upon him <£ to manage and dispose of the interest of the bank in the property at his best discretion,” was well warranted in the taking of the notes running to himself or bearer, together with a mortgage to himself to secure the notes, so far as the parties to the transaction are concerned.

But it is insisted that the oath that the debt was due from Tufts to Page, the mortgagee, is not true ; and is so shown, and for that cause the mortgage is void.

It is not questioned that the debt is justly due from Tufts to some one; nor that if the mortgage had been taken to the bank, and the debt had been stated to have been due to the bank, the oath of Page, the agent of the bank, would have been a sufficient verification of the fact.

But is it not true, according to the requirements of the statute, that the debt was so far due to Page that he might well, and with propriety and truth, testify that it was due to himself ?

Is not the oath true ; and is not the certificate verified by a party so far interested in the debt that it may be treated as due to him ?

The notes were payable to Page. He had proper authority to take them payable in that manner. Were they not due to him, as between the parties, in the eye of the law ? It is true that he held the notes and the interest under the mortgage, as the trustee and agent of the bank.

But nevertheless, the debt was due to him in that capacity; and well might he, under such circumstances, we think, make oath that the same were just debts, due and owing to him. They were just debts, due and owing and payable to him; and although as trustee in fact, nevertheless the oath is true and sufficient, according to the requirements of the act. Page might have maintained an action, in his own name, upon the notes if not paid at maturity. The great object of the statute is the verification of the justice of the debt, as the debt of the mortgager ; but whether it be due to the mortgagee as absolute owner, or only as trustee, can make no difference. If the mortgage be made to the actual proprietor of the debt, excepting in the case of a corporation, he, as well as the debtor, must verify its justice; but if the securities be taken to the trustee, he may be made a party to the verification.

A different doctrine would never allow a trustee to secure the money of his cestui que trust by a mortgage of personal property otherwise than in the name of the cestui que trust; and of course in all cases of incapacity on the part of the cestui que trust, the trustee could not thus secure it at all. We are therefore all clearly of the opinion that the mortgage was valid, and conveyed to Page all the property sufficiently described therein; not only as between the parties, but as against the creditors of Tufts.

It is not questioned, that the mortgage, if well executed and verified, passed a title to all the property, by a sufficient description, excepting the article called the rag-cutter. It is contended however that that did not pass under the deed, for the reason that it was not sufficiently described.

The ease finds that it was intended to pass the title to. that article of machinery as well as the rest, provided parol evidence be competent to show such intention. If the facts furnish a case of a latent ambiguity, then the evidence was admissible, if not, it was inadmissible. Jones v. Newman, 1 W. Black. Rep., 60; Thomas v. Thomas, 6 D. & E., 671; Claremont v. Carlton, 2 N. H. Rep., 369.

The rule on this subject laid down by Lord Bacon, and which has come to us approved by learned commentators and jurists, is thus stated, “ There be two sorts of ambiguities of words, the one is amhiguitas patens, and the other latens. Patens is that which appears to be ambiguous upon the deed or instrument, latens is that which seemeth certain and -without ambiguity for anything that appeareth upon the deed or instrument, but there is some collateral matter out of the deed that breedeth ambiguity.”

The illustration given by Lord Bacon of a latent ambiguity is thus, “If I grant my manor of S. to J. E. and his heirs, here appeareth no ambiguity at all. But if the truth be that I have the manors both of South S., and North S., this ambiguity is matter of fact, and therefore it shall be holpen by averment whether of them it was that the party intended should pass.”

In Cheyney’s case, 4 Coke’s Rep., 68, the rule upon this subject, as well as the nature of the question arising under it, and its application, are very clearly stated and illustrated. The case given in illustration is thus, “A man devises his land, by his will, in writing, to his son John, generally, and dies. It turns out in fact, that at the time of making his will he had'two sons, both baptized by the name of John. It is now apparent that although the terms of the will are clear and plain, an ambiguity has arisen as to the person to whom they were intended by the testator to apply. Coke says that in such case he shall have the land whom the father intended to advance with it, and that the younger son may, in pleading or evidence, allege the devise to him; and if it be denied, he may produce witnesses to prove his father’s intent, and that the father thought the other to bo dead, or that at the time of the will made, he named his son John, the younger, and the writer left out the addition of younger. And if it cannot be proved whom the father did intend, the will is void for uncertainty.”

Woodbury, J., in Claremont v. Carlton, 2 N. H. Rep., 869, puts a case of a latent ambiguity thus: “ The identical monument or boundary referred to in a deed is always a subject of parol evidence, and when disputed it is always left to the jury to say which was the actual monument intended. Thus there may be two trees of a similar species, and with similar marks ; two similar stakes not far distant from each other, or two rivers of the same name; and which was intended by the deed would be settled by parol evidence, on the ground that it is a latent ambiguity.”

Bartlett v. the Town of Nottingham, 8 N. H. Rep., 300, was an action commenced by the plaintiff to recover compensation for services rendered for the defendants, at the request of one Joseph Cilley, in procuring a discontinuance of a highway laid out in said town.

On the twelfth of March, 1833, Cilley was appointed agent of the town to defend against the petition upon wMch the road was afterwards laid out in January, 1834.

In March, 1834, it was voted that the selectmen be the agents of the town for the ensuing year.

At a town meeting, in December, 1834, the town voted to discontinue the highway, aird to authorize “ the agent ” to petition the court of common pleas for their consent. Upon this vote, Cilley took measures to procure said assent, and employed .the plaintiff in the business. It was submitted to the jury to determine, upon this evidence, whether the term “ the agent,” contained in the vote of December, 1834, referred to Ciliey or to the selectmen of the town.

The question, upon the case, was whether it was properly submitted to them to determine that fact.

In reference to the question arising upon the above facts, Mr. Chief Justice Bichardson used the following language, viz: “ It is well settled that where the extrinsic evidence introduced to show the particular subject matter to which the terms of the deed refer, shows only one subject to which the terms can be fairly applied, no parol evidence is admissible to enlarge, or restrain the unambiguous and intelligible terms used, or to explain the intention of the parties to the instrument.

Dut it sometimes happens that when the terms of an instrument are in themselves unambiguous, oral, extrinsic evidence becomes necessary for the purpose of ascertaining the particular subject matter to which they relate, and although the terms are clear and distinct, it happens in some cases that the objects to which they relate are not equally clear and certain, but even two or more objects may and are found to exist to which the terms may be properly applicable. In such a case arises what is termed a latent ambiguity.”

In the deed of mortgage under consideration the property is described to be “ the following goods and chattels now in and about the paper mill in Alstead, occupied by me, &c., viz: one paper-machine, sizer, dryer, cutter and all apparatus thereto belonging,” &c., &c.

It was shown in evidence that there is an instrument attached to a paper machine, called a cutter; also that there is a machine or instrument used in paper mills which is not attached to the paper machine called a rag-cutter, and that there was such an instrument in said paper-mill at the date of the mortgage, and that said instrument is sometimes called also a cutter. Upon this showing then, here were two instruments called and known by the name of cutter, one of which was also known by the name of rag-cutter.

Now we think the terms of the deed are properly applicable to each of those instruments, both of which were called cutters, and both of which were in the mill.

If but one of them had been found in the mill no doubt would exist, we think, that by the description in the deed the one so found would have passed by it.

The cutter attached to the paper machine, if that had been the only cutter in the mill, would undoubtedly have passed under the terms used, if not as a part of the paper machine itself. And we think also that under the circumstances supposed, the rag-cutter would have passed by the terms of the deed, inasmuch as the instrument was called and known by the name of cutter as well as by the name of rag-cutter, and was in the mill at the date of the deed. In such a case what doubt could exist, viewing the question in the light afforded by the deed and surrounding circumstances, that by the term cutter was intended rag-cutter, or the instrument sometimes or more generally- called by that name, and yet called also and known by the name of cutter, and that if no other cutter had been in the mill at the time it would have passed ? Here then, we think, was a clear case of latent ambiguity; and according to the whole current of authorities, both in England and in this country, the parol evidence offered in the case was admissible to show which of the two cutters was intended by the parties. The rag-cutter was therefore sufficiently described in the mortgage deed to Page, and was well conveyed thereby.

It is further claimed on the part of the defendants that the machines in question were conveyed to the Cheshire bank by Walter Tufts, by his mortgage deed of the paper mill, of January 9th, 1844. It is not doubted, that if the machines were conveyed by that deed to the bank, they afterwards became the property of the defendants by the subsequent conveyances mentioned in the case. The machines are alleged to have been fixtures, and to have passed as a part of the freehold, or 'as an appurtenance of it. The question then to be decided is whether the machines in question are to be regarded as fixtures annexed to the freehold, and so a part of the real estate, or aro to be deemed mere personalty as between the parties to the mortgage.

It would seem now to be fully settled, in this State and elsewhere, that the strict rule that has been applied in England, (1.7 Taunt., 191, and 3 East., 38,) as between heir and executor, in determining what are fixtures attached to the freehold, is applicable also as between vendor and vendee, and mortgager and mortgagee. Kittridge v. Woods, 3 N. H. Rep., 503 ; 12 do., 205, 232, and authorities cited. It was sometime since decided in England, that in general, as between persons holding the relation of heir and executor, whatever is connected with the freehold and annexed to it, and is necessary to its enjoyment and profitable use, shall go to the hem. Lawton v. Salmon, (Easter, 22 Geo. III.,) reported in 1 H. Black., 259, note. That was the case of salt pans fixed in salt works by the ancestor and fastened by mortar to a brick floor. The case of mill stones fixed to the mill is a case similar in principle, and is put by Ch. Baron Comyns as the case of a fixture belonging to the heir, and not the executor. Oomyns Dig. Biens B. The general rule as established by the authorities upon this subject is laid down in the case of the Despatch Line of Packets v. Bellamy Man. Co., 12 N. H. Rep., 233. It is stated thus: “ Machines and other articles essential to the occupation of a building, or to the business carried on in it, and which are affixed or fastened to the freehold, and used with it, partake of the character of real estate, become part of it, and pass by a conveyance of the land.” The authorities in support of the rule thus stated are there very fully cited, and a repetition of them here would be a work of supererogation. This general rule is recommended both by its reasonableness, and its manifest propriety and utility, and has the sanction of a great weight of authority.

Lord Mamf&ld stated the reasons and grounds of the opinion in Lawton v. Salmon, before cited, as follows: “ The present case is very strong. The salt spring is a valuable inheritance, but no profit comes from it unless there is a salt work, which consists of a building, &c., for the purpose of containing tíre pans, &c.s which are fixed to the ground. The inheritance cannot be enjoyed without them ; they are accessories, necessary to the enjoyment and use of the principal. The owner erected them for the benefit of the inheritance. He could never mean to give them to the executor and put him to the expense of taking them away without any advantage to him who could only have the old materials or a contribution from the heir in lieu of them. But the heir gained eight pounds per week by them. On the reason of the thing, therefore, and the intention of the testator, they must go to the heir. Every reason there urged, and every ground stated by Lord Mansfield, in support of the judgment in that case, is equally applicable in the case under consideration. This was a paper-mill. The building was erected to cover and protect the machinery, and enable the owners to operate it in the business of paper-making. Without the machinery, the business could not be carried on successfully; nor could the anticipated benefits of the paper-mill be enjoyed, or its profits be realized.

In the deed of Tufts to the bank the premises were described as certain land, “ with the paper-mill,” &c., thereon, and “ water privilege appurtenant,” &c., together u with all its privileges and appurtenances,” '&c. A building could hardly be properly denominated a “ paper-mill,” that should contain no machinery for the manufacture of paper. The building, in common understanding, would seem to be only one of the constituent parts of such a mill; while the machinery would be. necessary to fill up and complete the idea.

The facts respecting the machines in question, stated in the case, clearly shew them to have been fixtures within the plain-general rule laid down in the case of the Despatch Line of Packets v. Bellamy Man. Co., before cited. The machines were essential to the useful occupation of the building, and to the business carried on in it, and were affixed and fastened to the freehold, and used with it, and were in use in connection-with it at the time of the mortgage; moreover, tlie machines were clearly affixed for permanent use, and that is sufficient, according to many cases, even though the affixing had been slight. Walker v. Sherman, 20 Wend., 653.

The character of the fastening, such as it is shown to be, furnishes no objection to considering the machines as fixtures. It is said, in the case last cited, from 12 N. H. Rep., 233, that the character of the fastening, as being slight or otherwise, “is a criterion of a questionable character, not sustained by the weight of the decisions; more depends on the nature of the article and its use, as connected with the use of the freehold.” .

It is, however, necessary 'that machines or other articles, should, in some way, have been connected with the realty, or have been so placed, that the removal of them would involve either the destruction, or impairment, or substantial injury of the freehold, in order that the same should be regarded as constituting a part of it. Mere loose, movable machinery, in no way attached o.r affixed, is not to be regarded as a part of the real estate, even though it be used in connection with the freehold, and in the promotion of the business to which it is appropriated. 9 East., 215; Horne v. Baker, 20 Wend. Rep., 636; Walker v. Sherman, 6 Cowen, 663 ; Miller v. Plumb, 12 N. H. Rep. 234.

This view, however, does not conflict with the rule that is so well settled, that some things, which have been attached to the freehold, but which are detached for a temporary purpose, or by accident, are still, nevertheless, constructively attached, and are of the freehold and appurtenanees to it. A mill-stone detached to be picked, (Amos & Fer. on fixtures, 183,) and the stones and irons of a grist-mill removed by a flood, (Goddard v. Bolster, 6 Greenl. Rep., 427,) are of the class mentioned, and still belong to the freehold. Walker v. Sherman, 20 Wend., 636.

The case of Miller v. Plumb, before cited, goes far in its principles to decide, and is much in point to show that the machines in question, are to be regarded as fixtures, and passed by the mortgage deed to the bank.

Upon the whole, we are of the opinion that the machines in question were a part of the freehold, and as such, passed by the deed of Tufts to the Cheshire bank, on the ninth of January, 1844; and that upon this ground, as well as that before stated, the verdict in this case must be set aside, and that there must be

Judgment for the defendants.