151 Mass. 310 | Mass. | 1890
It is conceded by the .plaintiff, in his argument, that he has no title superior to that of Barker, and that unless Barker had such a title that he could maintain this action, the plaintiff has none. No such question is presented, therefore, as might arise if the plaintiff, without notice of any relation between Barker and the defendant, had in good faith, and for a valuable consideration, purchased from Barker an assignment of the mortgage upon the piano which is the subject of the replevin suit.
The plaintiff offered evidence of a mortgage of the piano from the Curriers (who originally were the undisputed owners of it) to one McAvoy; an assignment under seal to one Barker by McAvoy, purporting to convey the mortgage deed, the property, and the note and claim thereby secured; and a similar assignment to himself from Barker. The defendant’s evidence, if believed, and it was on the assumption that it might he believed that the ruling of the court was made, proved that the loan for which the mortgage was given was made by the defendant himself, through McAvoy, who was his employee, although the security was taken in the name of McAvoy; and that at a subsequent time the mortgage was transferred to Barker, who was another employee of the defendant, without any consideration moving from Barker, although the defendant had gone through the form of delivering to Barber seventy-five dollars with which to purchase the mortgage, which sum was delivered to McAvoy, and which the defendant afterwards received back from McAvoy. The defendant’s evidence, if believed, further proved ¿hat he had himself always had the note in his own possession, and that after the assignment of the mortgage from McAvoy to Barker he had the assignment also in his possession
The defendant by virtue of the mortgage had taken possession of the piano, and the instruction of the court was, in effect, that if the jury believed from the evidence that the whole transaction was a mere paper one, not understood to have any effect as between themselves, Barker could not and did not acquire a right which, as against the defendant, would enable him to replevy the piano. This instruction was correct. If, as between themselves, it was an arrangement by which there was' to be an appearance of title only in McAvoy and afterwards in Barker, while the real title was that of the defendant, Barker could not rely on the mortgage as conveying a title which could be asserted as against the defendant when the property was actually in the latter’s possession.
Exceptions overruled.
