1 R.I. 511 | R.I. | 1851
Embarrassing questions may arise under this Registry Law, where the sale is made by the mortgagor, left in possession of the mortgaged property by the mortgagee.
To uphold the sale, there must be some agency or authority in the mortgagor from the mortgagee, express or implied. If the possession be continued with the mortgagor for the purpose of sale, then the mortgagee ought to be bound, but if the possession be for use merely, then the mortgagee would not be bound.
The object of the statute is to compel the mortgagee to take possession of the mortgaged property or put his mortgage on record, and thus give authentic notice of its existence. The mere possession of the mortgagor is no evidence of authority to sell; such a construction would defeat the security of the mortgagee. The statute contemplates a possession by the mortgagor, and protects a purchaser by requiring a record of the mortgage.
But if the property is left in the possession of the mortgagor for the purpose of sale, then the mortgagor is the agent of the mortgagee for that purpose. In the absence of fraud, the effect of the possession depends on the intent of the parties; that intent is a question of fact. It may be inferred from circumstances such as are relied upon in the present case, but such inference is to be drawn by the jury, and the court ought not to instruct the jury that if they find the circumstances, they are bound in the absence of contradictory testimony to find the authority and intent.
This question was left to the jury with proper instructions, and after a careful consideration, we do not think the charge erroneous. *518
No request to charge in conformity to the ground taken in the petition for new trial was made at the time of the trial, and if there had been, we do not think we could have legally complied with it.
If the mortgagee should knowingly permit the mortgagor to hold out delusive appearances of authority to sell, and thereby deceive a bona fide purchaser, he would be bound. But the case at law was not put on the ground of fraud.
With regard to the fourth ground stated in the petition, we think if the materials used in finishing the machine were embraced by the mortgage, the mortgagee is entitled to the additional value derived from the materials as well as from the labor of the mortgagor.
We see no reason to set aside the verdict upon the other grounds on which a new trial is asked.
New trial denied. *519
