17 N.H. 286 | Superior Court of New Hampshire | 1845
The evidence shows that the plaintiff took possession of the property in question under the mortgage, and that he retained that possession within the meaning of the statute. There should be a change of the possession, as stated in Smith v. Moore, 11 N. H. Rep. 55. But what is necessary to constitute a change of possession must depend upon the particular situation of the propeiiy. 10 N. H. Rep. 236, Clark v. Morse. Upon a sale of articles which are at the time in the house of the vendor, they should be removed, or a control over them be kept in some way. So, perhaps, where they are on the land of the vendor, for that is his possession. But if they are
In the present case the manual possession was not in the mortgagor nor in the mortagee, at the time when the attachment was made; but the legal possession was in the mortgagee. The property was partly on a public landing. This was in the possession of the mortgagee after the delivery to him. So of that part which was at "Whitman’s mill-yard. If Whitman be regarded as having the actual possession, he had it for the party having the right of possession. The mortgagee took actual possession, and that possession was not relinquished, nor the prior possession restored, by leaving the property where it was at the time of the delivery.'
There is another view of this case. When the delivery of the lumber at the mill was completed, the plaintiff told the owner of the mill that he would pay for the use of the mill from that time. When that at the landing was delivered, he told the owner of the landing that he ■would pay him for the occupation of that. If it was necessary for him to do more in order to sustain his mortgage title, what was ho required to do ? It was evening. He could not be required to remove the lumber during the night, nor to keep personal watch and ward over it until morning, travelling from hour to hour between the landing and the mill-yard. And we are of opinion that he was not bound to keep agents at the different points during the night for that purpose. Ho might well go home and take measures for the removal of the property in the morning. This would not be a relinquishment of the possession, nor negligence. There is a sufficient explanation why a removal did not take place, if a removal were required, especially as the property was not left in the hands of the mortgagor.
The assignment in .Vermont appears to have been a valid instrument according to the laws in existence there.
• The mortgage is valid by the laws of this State, where it was executed. The two instruments cannot be construed together, as parts of the same transaction, so as to avoid the mortgage, upon the ground that the assignment is fraudulent as to creditors, and that the whole is, therefore, vicious. The assignment would have been invalid, if made here, to operate on property here, because it contains preferences not allowed by our statute. But it was not made here, and it cannot be rendered invalid by any constructive tacking of it to the mortgage. If that is good, and must remain so, because made in Vermont, it is not‘readily perceived upon what principle the mortgage, which is otherwise good, is to be avoided by construing it as a part or another transaction which is also legal and valid. If an entire transaction consist of several parts, and one fails,; the rest may fall with it; but the principle which governs such a case has no application in this:
The note to- Bell was introduced to repel an inference of fraud, which might otherwise have been drawn from its non-production, and for that purpose it was admissible.
The evidence respecting the shares in [the bridge corporation was properly rejected. It was offered to show fraud in the mortgage. Supposing the declarations and
The objection that the mortgage is invalid because it is partly in trust for the benefit of Robert Morse, and thus itself in the nature of an assignment, cannot be sustained. It is not essential to the validity of a mortgage that it should be wholly for the benefit of the mortgagee, nor will a trust for the benefit of a third person, of itself, give it the character of an assignment, within the act requiring assignments to comprehend all the property of the debtor, and to be without preferences.
The objection arising from the oath of the parties to the mortgage, indorsed upon it in pursuance of the statute, seem not to have been that the mortgage itself is invalid, because the proper oath was not taken, but that the note to Bell could not be introduced in evidence, because the security of that was not comprehended in the oath which was taken; but there is nothing inserted or omitted in the oath which can estop the plaintiff from showing that the mortgage was not fraudulent, or rebutting a possible
Judgment for the plaintiff.