31 Minn. 518 | Minn. | 1884
Lead Opinion
P. M. Tolbert, the owner of certain personal property, including that in controversy, mortgaged it to this plaintiff, with the purpose of defrauding his creditors. The mortgage was duly-filed. The property remaining in the possession of the mortgagor, he executed a second mortgage upon the property in dispute, with other property, to defendant Horton, in good faith, to secure the payment to Horton of a previously existing indebtedness of the mortgagor to him. It is found by the court, upon a stipulation of the parties asto the fact, that when Horton took his mortgage he had actual knowledge that plaintiff’s mortgage had been given, and was on file m the proper office, but did not know that it covered the property in question. The court further found as a fact that Horton’s-, mortgage contained these words, following the description of the: property: “All the said property being * * * free from all incumbrances, except a mortgage heretofore given on a portion of said property to one James Tolbert.” The condition of the defendant’s, mortgage being unperformed, he took the property from the possession of the mortgagor, and the plaintiff prosecutes this action to recover it.. The defendant contests plaintiff’s right of recovery, upon the ground of the fraudulent character of the plaintiff’s mortgage; and upon this ground judgment was awarded in favor of the defendant.
The findings of the court are to be considered as being to the effect, that Horton had not actual knowledge that the prior mortgage was. upon this property, unless such knowledge is conclusively presumed from the recital of the fact in his own mortgage. Actual notice of the prior mortgage of the same property is imputable to the defendant from the recital of the fact in the mortgage to him. He is conclusively presumed to have notice of the fact, and this notice is to bn deemed not merely constructive, but actual or express. White v. Foster, 102 Mass. 375; George v. Kent, 7 Allen, 16; Jackson v. Post, 15 Wend. 588. We are to consider, then, whether the first mortgage,
As a creditor merely, without having availed himself of any legal remedy to apply the property to the satisfaction of his debt, the defendant could not interfere with or disturb the transfer of property effected ■by the plaintiff’s mortgage. Massey v. Gorton, 12 Minn. 83, (145;) Jones v. Rahilly, 16 Minn. 283, (320;) Southard v. Benner, 72 N. Y. 424; Jones v. Graham, 77 N. Y. 628. The fact that the defendant was a creditor gave him no property in nor lien upon the goods of his •debtor. Only by legal process could he, as a creditor, appropriate the ■property to himself, or subject it to be applied to the satisfaction of his demand. Neither did the assumed conveyance of the property by the debtor, whether made for the purpose of security or of payment, place the defendant in a position to avail himself of the right as a ■creditor to assail the prior conveyance as being made in fraud of creditors, and thus to defeat the title of the prior mortgagee. Stone v. Vanheythuysen, 11 Hare, 126; Liggat v. Morgan, 2 Leigh, 84; Grimsley v. Hooker, 3 Jones, Eq. 4; Fox v. Willis, 1 Mich. 321. The con
Was the defendant a mortgagee in good faith, within the meaning of the statute, in view of the fact that he had actual notice of the prior mortgage upon the property? By force of the statute recited above, both want of registration and of transfer of possession are made to affect the rights of creditors and subsequent purchasers. The effect of the statute asa registry law is not here involved; and we need only say that its object and purpose, so far as subsequent purchasers and mortgagees are concerned, is to protect them against secret or unknown conveyances by reason of which they, purchasing in ignorance of prior vested rights, might be prejudiced, (Bank of Farmington v. Ellis, 30 Minn. 270,) and that, under such statutes, actual notice of the prior conveyance has generally, if not always, been deemed to make the fact of non-registration immaterial. Want of notice is an essential element of good faith, or bona fides, as those terms are used in registry statutes and -in equity jurisprudence. 2 Pom. Eq. Jur. § 759; 1 Jones on Mortgages, 570, 572; Willoughby v. Willoughby, 1 Term Rep. 763, 767; Grimstone v. Carter, 3 Paige, 421, 437.
The purpose of the provision in the statute, in relation to a change of possession of property mortgaged, is the protection of those who may be defrauded or injuriously affected by reason of the retention of the property. As to<creditors and purchasers, standing in such relation to the mortgagor as that they may be defrauded, the statute makes the retaining of possession by the mortgagor prima facie fraudulent, and casts upon those claiming under the mortgage the burden
As to subsequent purchasers and mortgagees, the object of the statute is to protect them from secret and fraudulent conveyances. But the statute does not have effect in the case of all subsequent purchasers or mortgagees, and should be construed with regard to this plain purpose of its enactment. It obviously does not apply in the case of a purchaser or mortgagee who has not been defrauded by the prior conveyance. For instance, a subsequent purchaser or mortgagee, who takes in terms subject to the prior conveyance, could not invoke the statutory presumption to avoid the prior conveyance; not merely upon the ground of estoppel, but because such a case is not within the purpose of the law. He has not been defrauded. There is no connection between the presumed fraud and the acquisition of title by the subsequent purchaser. And so in the case of any purchaser or mortgagee with actual notice of a prior conveyance, the reason of the law becomes inapplicable. He has not been defrauded by reason of the fact that possession of property had been retained by the original owner so that he had an apparent right to dispose of it. He knew, when he voluntarily assumed to take a conveyance, absolutely or as a mortgage, that the grantor, although he still retained possession, had already effectually transferred his title to another, and could not rightfully convey what he had not. The fact of continued possession of the original owner constituted no consideration or in
From these considerations our conclusion is that the defendant is not a subsequent mortgagee in good faith, within the meaning of the statute; that his mortgage is subject to the prior mortgage of the plaintiff, which is not affected, so far as he is concerned, by the fact that it was made with the purpose of defrauding the creditors of the mortgagor. This fraud does not concern the defendant, for he has not been affected by it, nor was he prejudiced by the retention of the property upon which rests the statutory presumption of fraud, since he had notice that the possessor had no title to convey, nor any interest, save the equity of redemption.
In the views we have expressed we are sustained by the following authorities, aside from those which place a similar construction upon statutes relating merely to the registry of conveyances: Sanger v. Eastwood, 19 Wend. 514; Gregory v. Thomas, 20 Wend. 17; Mitchell v. Steelman, 8 Cal. 363, 375.
The case was disposed of in the district court upon a different construction of the statute than that which we have expressed. The judgment must be reversed, and the cause remanded.
Ordered accordingly.
Dissenting Opinion
dissenting. I do not think that the term “in good faith,” as applied in this statute to a subsequent purchaser or mortgagee, includes the element of want of notice of the prior mortgage ; or, which is the same thing, I do not think that the fact of such
No doubt, under most circumstances, the expression “purchaser in good faith” implies want of notice of prior conveyances, but not always or necessarily so. This depends on the nature of the case and the object of the statute. You cannot in every case inject into a statute which uses the term “purchaser in good faith” the additional term “without notice.” Sanders v. McAfee, 42 Ga. 250; Thornton v. Bledsoe, 46 Ala. 73. “Good faith” is the opposite of “bad faith.” “Bad faith” implies fraud or wrong motive.
Under mere registration laws, the essence and sole .object of which is to give notice, of course a person cannot be a purchaser in good faith who has actual notice of a prior conveyance, for he has all that the statute was designed to give him. This has been often so held,
Our statute on chattel mortgages is not a mere registry laiv, as seems to be often assumed. It is a statute declaring certain mortgages void as to certain persons, unless certain things exist or are affirmatively made to appear. Its object is not merely to give notice to subsequent purchasers, or to protect those who purchase without notice-, of prior mortgages, as would be the case if it were a mere registration, act. How, in view of the provisions of this act, can it be said to be an act of bad faith, or a lack of good faith to a prior mortgagee, to take-a conveyance of property found in the possession of the mortgagor, simply because the party has notice of another mortgage which the law declares presumptively void, and conclusively so, unless the holder can make certain things appear? It seems tome that the object of the statute was to authorize all persons who, for an honest and fair purpose, have occasion to deal with the property, to do so on the assumption that any existing mortgage is presumptively void, and conclusively so unless the holder affirmatively proves its bona fieles. There is nothing novel in this. In many states, such as Massachusetts, Maine, Illinois, Missouri, and Wisconsin, chattel mortgages are declared void as against subsequent purchasers with or without notice, unless possession of the property has been delivered or the mortgage filed. I concede that, under common-law rules, defendant would not be in any better position than his grantor to attack plaintiff’s mortgage, for only he who had a prior right could have done so. But under this statute the rule is different, and under it actual notice on part of a subsequent mortgagee of a prior mortgage does not relieve the latter of the burden of making it affirmatively appear that his mortgage was executed in good faith, whenever he has permitted, the possession of the property to remain in the mortgagor. In short,.
