Taber v. Hamlin

| Mass. | Oct 15, 1867

Foster, J.

A bill of sale of personal property intended by both parties as a security for money lent, and an instrument of defeasance executed as a part of the same transaction, by the terms of which on payment of the note at maturity the bill of sale is to be given up and surrendered, must be construed together. And the two instruments constitute a mortgage, by all the authorities in this Commonwealth. Potter v. Boston Loco motive Works, 12 Gray, 154. Carpenter v. Snelling, ante, 452 The successive renewals of the notes secured by mortgage were not a payment of the mortgage debt. It therefore remained a valid and subsisting security; and the condition of the mortgage was broken when the note last given remained unpaid after its maturity.

Registration is not necessary to the validity of a mortgage of a ship or vessel, nor of goods at sea or abroad, if the mortgagee takes possession of them as soon as may be after their arrival in this state. Gen. Sts. c. 151, § 2.

The principal question in the present case is whether the mortgage has been duly foreclosed. At common law a mortgage, not a pledge, of personal property seems to have transferred the property absolutely to the mortgagee upon a breach of the condition. No process of foreclosure was necessary, and no right of redemption remained. Some authorities held that the mortgagor might maintain a bill in equity to redeem within a reasonable time after forfeiture ; but this rule was neither clearly settled nor universally admitted, and has never been recognized in this Commonwealth. See 2 Hilliard on Mortgages, c. 50, where the eases are collected. The first statute regulation of this subject is found in the Rev. Sts. c. 107, § 40, by which the mortgagor of personal property is allowed to redeem at any time within sixty days after condition broken. By the St, of 1843, c. 72, § 1, the right of the mortgagor is not to be forfeited until sixty days after the mortgagee has given written notice of his intention to foreclose said mortgage for a breach of the condition thereof, and caused a copy of such notice to be recorded in the town clerk’s office where the mortgage is recorded. The Gen. Sts. c. 151, §§ 4, 5, 6, 7, continue in effect the same provisions. Section 7 provides that the notice with an affidavit of service shall be recorded wherever the mortgage is recorded. Section 8 enacts that “if the money to be paid or other thing to be done is not paid or performed or tender thereof made within sixty days after such notice is so recorded, the right to redeem shall be foreclosed.”

What then is the mode of foreclosure, where the mortgage is not, and is not required to be, recorded in any town or city clerk’s office ? The plaintiff contends that by the letter of the statute there can be no foreclosure until sixty days after such a record of the notice. If this be so, then none of the statute provisions above recited apply to the present case. A recording of the foreclosure notice in a place where the mortgage is not required to be recorded would be wholly ineffectual and not within the language of the act. To hold that a mortgage valid without registration is incapable of foreclosure in any manner seems to us an inadmissible construction of provisions the object of which was to regulate rights of redemption and modes of foreclosure. If we were forced to conclude such to be the result of the legislation on the subject we should probably hold that there could be redemption in equity only within a reasonable time, which by analogy would not exceed sixty days. We prefer, however, to give the statute system such an interpretation that it will embrace the foreclosure of mortgages not required to be, as well as those which must be, recorded. Accordingly we hold that such mortgages are to be foreclosed like others, by sixty days’ notice of the intention to do so, served as required by the statute; but that in the cases where no registration is necessary this exception applies to and includes the notices of foreclosure as well as the mortgages. Where the mortgage is valid without being recorded, the foreclosure notice also is sufficient without registration. This seems to us to be the fair result of the language, and the only rational interpretation of the meaning of the statute. Thus construed, its provisions make a complete and harmonious system.

It follows that the mortgage in the present case has been duly foreclosed, and this bill must be dismissed with costs.