236 Mass. 435 | Mass. | 1920
This is an action of replevin brought to recover an auto truck, and is before us on a report of a judge of the Superior Court upon a case stated.
The material facts are that on March 6, 1918, one Wise, the owner of the truck, delivered it to one Travers under an agreement in writing, by which the title remained in Wise until all the notes given by Travers for the purchase price under the agreement were fully paid. On August 30, 1918, all notes then due having been paid, and there remaining a balance of $1,425, Wise gave to the plaintiff a promissory note for that amount, payable by instalments, and at the same time assigned to the plaintiff as collateral security therefor all the Travers notes then remaining unpaid, together with the conditional sale agreement. The indorsement on the back of the agreement was as follows: “For value received I hereby assign to the Worcester Morris Plan Company the within lease and claim and my interest in the property therein described. Charles W. Wise.” The assignment was not recorded.
From August 30, 1918, to and including January 6, 1919, all the Travers notes maturing during that period were paid by him to the plaintiff at maturity and were applied toward the payment of instalments due upon Wise’s note of $1,425 to thé plaintiff, and the balances of instalments due to the plaintiff on Wise’s note were paid by Wise. The payments due on the Travers notes and on the Wise note on February 6, March 6, April 6, and May 6, 1919, had not been paid at the date of the plaintiff’s writ and have not since been paid. Travers died in January, 1919; and afterwards Wise,* without the knowledge of the plaintiff, gave a bill of sale of the truck to the defendant and delivered it to him. Default having been made in the notes held by the plaintiff, demand was made for payment, and as payment was not made, the plaintiff demanded possession of the truck, which was refused. The only question is, whether the assignment from Wise to the plaintiff should have been recorded in accordance with the provisions of R. L. c. 198, § l, as amended by St. 1915, c. 226.
It has long been settled in this Commonwealth that a sale and
The conditional sale to Travers vested in him a special property in the truck which he could sell or mortgage. Hurnanen v. Nicksa, 228 Mass. 346, 350. Yet the general ownership and title remained in Wise, and was subject to be defeated only by the performance by Travers of his agreement. After the conditional sale to Travers, Wise continued to be the general owner of the truck and could sell or mortgage his interest therein. Appleton v. Bancroft, 10 Met. 231.
The assignment from Wise to the plaintiff transferred all his “interest in the property” described in the agreement of conditional sale: it transferred the legal title to the truck, subject to the right of redemption by Travers. It was in effect a bill of sale, and as it was given as security for the payment of a debt it constituted a mortgage. Taber v. Hamlin, 97 Mass. 489. It is a bill of sale as those words are used in St. 1915, c. 226, and as it was not recorded as provided by the statute, it was not valid as against the defendant.
The case of Marsh v. Woodbury, 1 Met. 436, related to a conditional assignment of a chose in action, and is not applicable to a specific article of personal property which is susceptible of delivery, although delivery cannot be made because it is in the possession of a third person, under an agreement, lien or pledge.
In accordance with the terms of the report, judgment must be entered “for the defendant with costs and an order for the return of the truck.”
So ordered.