*1 CLANK TANBELL. v. because, and instituted carried on individual, at the expense fact, witnesses with- summoned other cases the solicitor testified case, out compensation this and so the indictment not have been found plaintiff testimony the witnesses whom the wholly produced. mani- erroneous, instructions and since respect they festly may have controlled the the verdict should finding jury, set aside and a trial granted. Ladd, J., J.,

Cushing, C. concurred. A new trial granted. Tarbell. Clark Aug. 11, 1876.

Chattel and record. mortgage—Want of affidavit make subscribe to chattel neglect Although Stats., Gen. ch. sec. although affidavit required is nevertheless a valid as against is not creditor, of mortgaged property provided possession attaching taken by mortgagee. Hillsborough Circuit Court.

From Joel H. Moses Clark against a sheriff’s receipt, Assumpsit, state issue, with a brief Plea, the general Tarbell John H. Tripp. defence, that the property other ment, out, among grounds setting subject plaintiff time it wras attached Keese, E. to Levi one Abel one Levi Conant, another Keese, after re defendants, defendant, Tripp; and the con it to with the the mortgagees restored ceipting sent of suits. the original and defendant in Putnam, D. Jacob that the property to show evidence tending introduced plaintiff hav- ; that judgment in four suits Putnam himby attached in his their executions ing plaintiffs, placed ; been recovered de- seasonably he attached hands to on the levy manded the of the defendants. same Put- real estate two introduced Conant, in which Keese, and the Keese, Tripp, one to other nam, of contro- the which is was also included the personal property in this versy suit. accordance Neither of the mortgages, in relation Statutes General provisions nor in time of the attachment of them at the was either town was situ- therein described Lyndeborough, where *2 ated at offered to The defendants then the time the attachment. show in was at the time the the receipt the mentioned said virtue of mort- by attachment in the the mortgagees them, and the gages, and sold by proceeds ap- that was subsequently ruled that plied debts; in but the court satisfaction the and that attachment, the against pos- were invalid as mortgages creditors, session the against under them could not avail as attaching to which verdict for The court directed a the defendants excepted. the plaintiff to rendered the amount of the receipt, judgment for thereon for the thereof, judg- for amount the amount due on the ments in be set attached, in the was or to the suits aside and on as the court shall be of trial granted, opinion foregoing facts. questions law case were transferred arising foregoing to this court O. J., C. by Stanley, Stevens n for Barrett, Parker and the defendants. $ A. Burns, W. and plaintiff. Sawyer J. and was offered evidence ex- Certain Smith, cluded But facts for must, offered court. purposes

this case, as proved. be considered in fact, chattels attached were found the possession that the attachment, was at the time of itself mortgagees sufficient notice to that should have them attaching put creditors in- title held it some inconsistent quiry they ascertain Possession of title in the chattels mortgagor. unincumbered presumptive ownership. evidence in defective the defendants were two mortgages particulars : Gen. 6, 123, Stats, sec. ch. (1) required by lacking, and section By never been recorded. (2) required property, unless to retain possession ; section mortgagor recorded duly gagee subscribe an affidavit as to the are to make and justness required secure given debt secured. When liability 12 accordingly. is to be varied Section the affidavit (section 9), against shall valid “No such words: administrators, his executors and except sion is posses- mortgagor, the man- delivered, ner herein prescribed.” In N. H. a mortgage personal 50 chattels, Gooding Riley, by law, was held subse quent having prior mortgage notice made full In the able good faith consideration. discussion and for a “ case that the statute J., says requisites O. he are equally Bellows, imperative óf real prop the cases personal ; erty making conveyances per. provisions,

VOL. lvii. sons but the in case of failure to and-bis com- grantor representatives two explicit with the statute are cases. ply requisitions, equally there is this distinction. In to real respect Between the two cases is to for laws notice all con- estate, provide registry object conveyances; others veyances, secret purchasers protect in the of re- object while case mortgages personal the affidavit is to fraudulent or fic- quh'ing guard against to retain the titious enable possession of his creditors defiance. set is notice Where the object simply through registry, that actual thei’e would be much for’ce notice suggestion ought to be record and has been held equivalent pur pose subsequent purchasers creditors protect *3 6 H. Dorion, v. N. without notice. Montgomery “ faith of a good The of truth and of mortgage per- verification different; a somewhat it yet may sonal stands property ground be who said to to have occasion to deal designed be protect persons, from false and fictitious that respecting to and, in furnish incumbrances, some evidence that change the absence possession, any of of in was made faith. To some mox-tgage evidence, such affords affidavit extent and record change possession of it when take the of could designed place were possession not given.” be conveniently and, as December, 1870, observed, This case was will decided in to the fact that the affidavit re attached Judge quii’ed great ixnportance Bellows those who deal with by the statute was to afford intended in the incumbrances absence mortgagor some fictitious protection not have forgotten then the case change of He could possession. June, six months 1870, only v. in of Janvrin 49 N. H. decided Fogg, notes in Jan in v. One head the decision Gooding Riley. before : Possession mortgagee is as follows Fogg vrin record the mortgage. answers instead mortgaged property But mortgage possession property tlxe statute must be taken it, the affidavit required be taken under both thereto.” subscribed by parties the' lengthy- opinion to this only The point allusion (t several provi an examination is in court Hpoxi words: statutes, that possession we are satisfied sions of mortgage; record only supply place px’operty that as well as the other. case is the one itself, without the mortgage is made essential part The affidavit mortgager” p.358. is evei’y mortgage which — the decision not necessary of this The consideration point as a oxxly then can be regarded raised case. that It questions the opiniorx who delivered fi'om learned judge statement comixxg but neverthe- highest respect; as court, and, such, entitled an authority. regarded it cannot be the light less question. is of this decisive on this history v. TARBELL.

CLARK Prior neither a nor June record session, possession In validity essential to the mortgage. year an act should take passed which pos- provided session of the or cause the to be mortgaged property, duly December, recorded. It till was not was passed as to annex requiring justness claim secured has no substantial thereby. There those provisions to this The twelfth section not indeed day. does declare delivered, terms valid is that a shall be when possession is although the neither sworn to nor recorded but, expres- sio unius, alterius” “No such mortgage exolusib shall be applies. * * is is unless delivered ” means, that when delivered the shall be nor valid, deemed neither sworn to although recorded. A' There no pledge accompanied good. reason why the same should not be to a chattel principle applied mortgage, it, me, which, it seems prevents does not do. to the I am that where therefore opinion delivered chattel not sworn to although nor re- corded, valid. For these reasons there must be trial. C. J. of this subject-matter Cushing, suit as was’attached of Putnam in suits several present livered plaintiff. receiptors, and, not having de- demanded, when officer action is brought them to recover the value the attached property. *4 Their defence is the that put ground, substantially, the property was by them delivered to a persons having title. paramount They say that held, the attached was a of it Levi property part by Keese by Keese, virtue of a mortgage, by and a of it Levi part the' defendant Tripp, were Conant, one virtue of These by mortgage. recorded, not sworn to nor had possession mortgagees of is, the and the claim that under the statute property these mort- gages, not sworn to nor though yet attach- against statute, ing creditors, by the of that notwithstanding reason possession. It settled, well that defend himself his receiptor may against re- that the has into the by showing gone hands of the true ceipt property owner; settled, well the equally party claiming prop- attachment, from it is erty, whose taken is not possession estopped his that he was of receipt the owner showing property. at We then once as to of brought are question validity under the circumstances. occasion, in the N. Tilton, We had case of Tucker 55 H. of notice the between of the distinction the effect statute Elizabeth creditors, making conveyances void made to defraud the effect of our void not with certain making statute executed all and adminis formalities but their executors against parties trators. dis- any It not case that there contended present

CLARK v. TARBELL. or invalid mortgages, about that would be honesty of ques- But said all under Elizabeth. that creditors tion is, case; dishonesty or is out honesty only point of the ab- of our statute, virtue whether, by mortgages, by reason formalities, of certain are rendered void. sence if hands that into the It is not been questioned property put by way of these not mortgagees pledge by way have or record. the transaction would is no reason which can be why property There assigned pledge of the valid, should be while placed possession pledgee be same should property fur- forms One of those is no invalid. more liable suspicion be more for fraud would facility other, nishes no than the and there honesty as much reason for affidavit of requiring practically sale and as absolute of a where every every pledge, was in mortgagee. property law, our been, of a has This matter always creditors. validity conveyances criterion grand the But, held most we have to the rule the possession while rigorously has law fraud, vendor evidence of our personal property over thrown no doubt of those there validity where conveyances of possession. a change first June I this state was the believe act “An 1882, entitled act fraud transfer prevent personal It by mortgage.” provides personal no mortgage property than hereafter made shall be valid against any other person property de- thereto, unless parties to and retained the said mortgagee, livered unless officeof the clerk town the mortgagee where the time same.” reside shall 17,1840, December next approved the Laws of It that no p. provides is found in hereafter, to attachment and liable execution gage personal executed, thereto, shall be valid as between the except parties affir- shall take and subscribe oath or severally following said form of oath in use. It giving nearly that this statute same as now mation ”— about says nothing possession by noticed sworn. invalid unless makes mortgages but the statute of there is no provision It will be noticed *5 it. statute of the statute of or any part the repeal for and must statute-book, stand and that 1840 together upon ; it to me that true and seems construction together construed 1840 apply make statutes, taken would together, those This shifted. solely to those where was not consistent consistent, the whole harmonious also leave would Revised Statutes next to be mentioned. provision came 1842. 133 is Then the Revised Statutes of By chapter pro- yided as follows: delivered Sec. must be Possession of the mortgaged property must be and retained mortgagee, mortgage resides at office the clerk the town which the time of the same. “ Sec. shall make and subscribe 3. Each mortgagor mortgagee : affidavit, substance, as follows “ Sec. against any except 7. No shall be valid such mortgage person is administrators, his mortgagor, executors delivered, or is in the manner sworn to and recorded mortgage herein prescribed.” It is not to in the statute it was see that impossible intended to not be should restore the old law that principle of the when the required property. If this had not think that intention, been the I section would have been made to affect as well as mortgagees. pledgees But it was understood that always keeping possession taking vendee, the ments did with most of the away or induce- pledgee, fraud, course the transaction from suspicion. relieved of the provisions General Statutes are the same terms and to the same effect. In Janvrin v. said, is an examination of Fogg Upon several —“ provisions gaged we are of the statutes, satisfied mort- will only supply the record place and that the affidavit is well as in the one case as the other. itself, The affidavit is made an essential part mortgage mortgage every mortgagor.” A careful examination our on this has not en- point abled me to reach the conclusion above The statute cannot stated. be so construed without the most material erasing section, part and so far is the affidavit being an essential part said, that it is gage, J., in Doolittle substantially Bartlett, Lyman, concerned, 44 N. H. 608, so far that, as this statute no conse- or quence true He holds that this not. affida- isvit that, necessary the execution part by the mortgage, true in order Elizabeth, statute of the affidavit must to make the creditors but as that statute only pro- tection of creditors, the under our statute good subsequent whether the affidavit true or not. The purchasers, to indictments for themselves but expose perjury, under that if will be sworn to. good enough It seems me, therefore, that when the retains posses- sion without either and, record affidavit, having excluded, evidence of possession the verdict must be set aside.

Ladd, J., concurred. sustained.

Exceptions