32 A. 919 | R.I. | 1895
This is a bill to reform a mortgage of personal property. The J.J. Ryder Co., a partnership, executed and delivered to the complainant a mortgage to secure the payment of a loan of $4,600, of which a balance of $2,500 with interest from March 23, 1893, remains due and unpaid. By the agreement between the firm and the complainant, made when the loan was negotiated, the complainant was to have, as security for the loan, a mortgage covering the entire property of the company, including its printing presses and other machines, cameras, lenses and type. The mortgage as drawn, however, was not broad enough to include these articles of property, the words "fixtures and furniture" used in the *189 description of the property conveyed not being as the parties supposed, sufficient for that purpose.
It was contended, in behalf of the receiver, that the mistake, being as to the legal effect of the words "fixtures and furniture," was a mistake of law and not of fact, and therefore a mistake not relievable in equity. There are cases to support this contention. Among them may be cited Sibert v. McAvoy,
It has been suggested that, as to the property not included in the mortgage as originally drawn, but sought to be included in it by its reformation, the mortgage is an unrecorded mortgage; and the question has been raised whether, in view of the provision of Pub. Stat. R.I. cap. 176, § 9, that no mortgage of personal property shall be valid against any person other than the parties to it, unless possession of the mortgaged property be taken and retained by the mortgagee, or unless the mortgage berecorded in the office of the town clerk where the mortgagor resides, the mortgage can be reformed so as to make it a valid mortgage as against the receiver. We have reached the conclusion that the mortgage as reformed will be valid as against the receiver. He was appointed receiver in the suit of Kelley v.Ryder, which was a bill brought for the dissolution of the partnership of the J.J. Ryder Co., on motion of creditors who had been allowed to intervene. As such receiver he took the property of the partnership, subject to the equity of the complainant to have the mortgage reformed. We do not see that he occupies any better position, with reference to the property to be included in the mortgage as reformed, than that of an assignee under a general assignment for the benefit of creditors in respect to property conveyed by an unrecorded mortgage. If this be so, the question is the same which was determined in Wilson v. Esten,
A decree may be entered for the reformation of the mortgage according to the prayer of the bill.