Pease v. Odenkirchen

| Conn. | Jun 15, 1875

Loomis, J.

The question in this case is, whether the facts appearing in the motion show such title or' right in the plaintiff to the possession of a certain machine described in the declaration, as is required by law to maintain the action of replevin for goods unlawfully detained ?

If the plaintiff has any title to the machine in question, it is by virtue of a chattel mortgage from one Smith to the plaintiff, made and recorded pursuant to the provisions of the General Statutes, Revision of 1866, p. 481, sect. 4.

The mortgage deed, with the accompanying evidence, was objected to by the defendant, and its admission by the court is made a ground for the motion for a new trial; but as the facts are all found, and the question of evidence is necessarily ■involved in the question of title, it need not be separately considered.

The plaintiff’s mortgage was in proper form, and duly executed and .acknowledged on the 31st of May, 1870, and recorded on the same day in the office of the town clerk of the town of Plymouth, where the property was then situated and used. The machine was particularly described, the debt mentioned in the condition of the mortgage was honestly due, and in short every provision of the statute was fully complied with, and by the express terms of the statute “such mortgage shall be good and effectual although the mortgagor shall retain possession of the mortgaged property.”

The plaintiff then at the outset shows a perfect mortgage title in himself. If such title remained in him at the commencement of this suit it is sufficient, for, by the general rules of law, “ a mortgagee of chattels has the legal title or general property, even before the debt is due, liable to be defeated by redemption; and a right to immediate possession unless otherwise agreed.” 2 Hilliard on Mortgages (4th ed.), p. 343, § 3; Brackett v. Bullard, 12 Met., 308.

It must be conceded that the plaintiff’s title was originally perfect, and so continued for nearly a year, and it still continues unless it has been in some way conveyed or lost by the act or fault of the plaintiff. Has the plaintiff done anything or omitted to do anything, whereby he has lost his right, or can be estopped from asserting it ?

1. The property in May, 1871, was removed from Plymouth, in Litchfield county, to Bristol, in Hartford county. But this was not the act of the plaintiff. The mortgagor removed it without the knowledge or consent of the plaintiff, and surely his title cannot be taken away by the unauthorized act of another.,

2. But the defendant claims that after the plaintiff was informed of' the fact of such removal, he ought to haye recorded his mortgage in the town of Bristol.

It would seem quite anomalous to record in Bristol a mortgage which expressly describes (as this does) the property as situated and used in the town of Plymouth. If therefore anything is required, a new mortgage or some new statement would be more appropriate, ■ describing truly the situation of the property at the time.

But we pass from this to the more important question— what the statute requires of the mortgagee in the event of a removal of the property from one town to another. The statute is entirely silent on this subject, and we do not see how any such requirement as is claimed can be fairly implied from any of its provisions.

■ And in so construing’the statute we derive strong confirmation from the well considered case of Brigham v. Weaver, 6 Cush., 298.

This was an action of trover. The plaintiff claimed title under a mortgage pursuant to a statute which enacted that “every mortgage of personal property, whenever the mortgagor shall retain possession thereof, shall be recorded as well by the clerk of the town where the mortgagor resides, as by the clerk of the town in which he principally transacts his business or follows his trade or calling.”

The facts relied upon by the defence were, that after the mortgage was recorded the mortgagor changed his place of business by removing to another town in Massachusetts, taking with him the mortgaged chattels; that the plaintiff, although he knew of such removal, did not cause the mortgage to be recorded anew in the town to which the mortgagor removed his business; and that, after such removal, the defendants bought the chattels of the mortgagor, without actual notice of the plaintiff’s mortgage. The court held that these facts constituted no defence, and Metcalf, J., in delivering the opinion of the court, announced the general principle as follows:—“When a mortgagee has once recorded his mortgage according to law he has acquired a perfect mortgage title to the property, and he is not bound to do any further act in order to preserve that title unless plainly required by law. But we cannot find that he is so required by the statutes last cited. They require him to record his mortgage in the town where the mortgagor resides and in the town where he transacts his business. One record in each of these towns is all that is expressly required, and nothing further is necessarily implied.”

The reasoning of the court in Hoit v. Remick, 11N. Hamp., 285, also strongly supports the position we have taken.

3. But it is further claimed that the policy o‘f our law for the prevention of fraud, if it does not require the plaintiff to have his mortgage recorded in the town to which the properly had been removed, at least required him to take legal steps to regain possession.

The doctrine of the common law as held with great rigor in this state is, that continued possession by the vendor after a sale of personal property raises a presumption of fraud, which cannot be repelled by any amount of evidence showing the transaction to be honest and for valuable consideration. But there may be a legal excuse for the retention of possession; and where the facts and circumstances amount to a presumption of law that the retention of possession by the vendor is consistent with the sale, the presumption of fraud is overcome.

In Osborne v. Tuller, 14 Conn., 529" court="Conn." date_filed="1842-06-15" href="https://app.midpage.ai/document/osborne-v-tuller-6575469?utm_source=webapp" opinion_id="6575469">14 Conn., 529, it was held that a válid assignment for the benefit of creditors under the statute of 1828, was a sufficient legal excuse for the retention of possession by the assignor.

In the present case, where a mortgage is executed and recorded in accordance with the provisions of a statute which declares the mortgage good and effectual “ although the mortgagor shall retain possession,” there is more than a presumption of law that the retention of possession is consistent with the sale; there is the explicit declaration of a public statute to that effect. Our argument on this point of course assumes that we are right in our construction of the statute. It would doubtless have been more in accordance with our rigorous policy to prevent fraud and false credit arising from continued possession in the vendor, if the statute had, provided for recording mortgages anew in case of a removal from the town; but it is the duty of the court to^construe the statute as it is, and not add to it or amend it by construction.

4. The result of our reasoning is, that the plaintiff has sufficient title to enable him to sustain this action, unless he has done some act whereby he is estopped from setting up his title; and such a defence is made in this case. The facts however do not sustain it.

It does not even appear that the mortgagor held himself out as owner, except what is implied from bare possession and use; much less does it appear that the plaintiff knew or had any reason to suppose he was so doing. There is no evidence to show that the defendant’s claim against the mortgagor was contracted after the removal to Bristol, or that credit was given to the mortgagor on the faith of this title being in him, or that the defendant was in any way misled to his prejudice by anything the plaintiff did or omitted to do.

5. ■ The only remaining question is, whether the plaintiff had a right to the immediate possession of this property at the time of bringing his suit. The claim is made that, as he had done nothing to assert his right under the mortgage, and had made no demand of the mortgagor or of the defendant, he cannot recover.

The cases cited in behalf of the defendant on this point do not well sustain the position taken.

In the case of Skiff v. Solace, 23 Vermont, 279, there was an express provision in the mortgage itself that the mortgagor should retain possession of the property until default.

We consider it well settled as a rule of law that a mortgagee of chattels has the immediate right of possession, unless it is otherwise agreed in the mortgage. 2 Hilliard on Mortgages, (4th ed.,) p. 343, § 4; Stewart v. Hanson, 35 Maine, 506; Ferguson v. Clifford, 37 N. Hamp., 86. In the present case there is no provision in the mortgage allowing the mortgagor to have the possession.

It is suggested that the defendant, as a purchaser of this chattel, occupies a different position from the mortgagor, and that in his case a demand was necessary before bringing the suit. We think not. It was decided in Partridge v. Swazey, 46 Maine, 414, that a mortgagee may bring replevin against a vendee of the mortgagor without a demand. And upon the facts appearing in the motion we cannot concede to the defendant the position of a bona fide purchaser from a party in- possession, clothed with the apparent ownership, because, “after the title of the lawful owner had been fully made known to him, he made the purchase and assumed dominion over the property.” Parker v. Middlebrook, 24 Conn., 207" court="Conn." date_filed="1855-10-15" href="https://app.midpage.ai/document/parker-v-middlebrook-6576902?utm_source=webapp" opinion_id="6576902">24 Conn., 207.

A new trial is not advised.

In this opinion the other judges concurred.