This is аn action of replevin brought by a senior mortgagee against a junior mortgagee of the same property, who had taken pоssession of and removed a part of it by virtue of his mortgage.
That the senior mortgage was filed in the office of the town clerk of the рroper town, and in proper time, were facts specifically found by the jury; and such finding was not excepted to, and therefore, striсtly, the question whether it had been duly filed was waived. But objection was taken on the trial to the introduction of the mortgage, on the ground that nо sufficient proof of the filing of the mortgage was made by a certified copy of the mortgage and its indorsement of filing; and' the learned counsel of the appellant may have rested upon such objection in good faith, as sufficient to raise the question, without excepting to the finding. It was admitted that no book had ever been kept by the town clerk of that town for
The learned counsel of the appellant contends further, that the mаchinery of the mill had become fixtures and a part of the realty, and that, therefore, the first mortgage should have been recorded as a real-estate mortgage in order to charge the junior mortgagee with notice. It is true that a prior lien, by mortgage or otherwise, upon the estate, which might include all such fixtures as a part of it, might not be divested or affected in any manner as to such fixtures by a subsequent chattel mortgage upon such fixtures as personal property, by the owner of the estate. Frankland v. Moulton,
Rut in this case the junior mortgagee does not claim any interest in the realty, and holds no relation to it, but claims the fixtures as personal property, subject to his chattel mortgage, to be taken possession of, removed and sold as suсh. His mortgage is a chattel mortgage, and was filed as such, and upon condition broken he takes possession of the fixtures in question as personаl property and removes them, and now claims title to them as personal property by virtue of his chattel mortgage. He has, in faсt, severed these pretended fixtures from the realty to subject them to sale to satisfy his chattel mortgage, and thus treated them as in evеry respect personal property. Under such circumstances he has estopped himself from denying that the fixtures in question are per
It is further cоntended that the taking of the possession of' the machinery in question by the senior mortgagee, after condition broken, by virtue of his mortgage, and then surrendering the same to the possession and use of the mortgagor, invalidated his mortgage, and that such surrender to, and permission tо iise the property for the benefit of, the mortgagor, are conclusive evidence of fraud in the giving of the mortgage; or that such conduct of the senior mortgagee so hindered or delayed the junior mortgagee as to be fraudulent in law. If any such issue had been madе by the pleadings or oh the trial, or presented to the jury, such conduct on the part of the senior mortgagee might have been evidеnce tending to show that his mortgage was given and taken with intent to defraud, as a question of fact. But no such issue was made or found, and the learned counsel of the appellant does not now claim that such conduct has any other bearing than to be conclusive that thе mortgage is fraudulent in law and void. If the property, after being so taken possession of by the senior mortgagee, had been surrendered to the mortgagor with instructions “to go on and sell it,” instead of using it, as in this case, it would not amount to fraud in law, and make the mortgage absolutely void, but would be “a fact very proper to be left to the jury in connection with the question of a fraudulent intent.” This was one of the questions, and so decided, in Cotton v. Marsh,
By the Court. — The judgment of the circuit court is affirmed, with costs.