273 Mass. 130 | Mass. | 1930
This is an action of replevin brought in the Central District Court of Worcester against a constable for a portion of a carload of flour to which the plaintiff claims title, attached by the defendant on a writ from said court as the property of one Charles M. McDonald; The trial judge found that the attachment was made on April 26, 1927, and “was a valid one as far as McDonald was concerned and the defendant was acting within his official authority providing the flour was the property of McDonald at the time the attachment was made,” but that on the preceding day McDonald had given a bill of
The plaintiff’s contention is, in substance, that “ the flour was ” not “ the property of McDonald at the time the attachment was made,” because (a) title thereto never passed to him, but, (b) if it ever did so pass, the bill of sale, though unrecorded, transferred from him to the plaintiff a title valid against the subsequent attachment, since at the time of the attachment the plaintiff had possession of the flour.
The trial judge found that at the time “ the attachment was made the flour was on the track for delivery in Worcester where it had been shipped by a flour mill from whom McDonald had purchased it . . . on a bill of lading made out to the shipper as consignee but with order to notify McDonald.” On the day of the attachment, but before it was made, the plaintiff, McDonald’s mother-in-law, “ with her own money paid a bank . . . the amount of the arrival draft issued with the shipment and then went to the freight house and obtained a release of the flour to herself.” The flour remaining in the car was attached while the plaintiff was in the process of unloading. The finding that the bill of sale was given as security, which was warranted by the evidence, in connection with the other findings, imported that the plaintiff paid the draft on behalf of McDonald. Consequently, title to the flour passed to him before the attachment was made, subject to the rights of the plaintiff, if any, under the bill of sale.
The trial judge ruled correctly that the bill of sale “ given as security,” unrecorded, was “ of no legal effect against the defendant.” The defendant was not a party thereto. See Denny v. Lincoln, 13 Met. 200; Pratt v. Harlow, 16 Gray, 379; Drew v. Streeter, 137 Mass. 460.
As no error of law is disclosed by the record, the order of the Appellate Division dismissing the report must be affirmed.
So ordered.