McLarren v. Thompson

Appleton, J.

There is an interval of time, longer or shorter, as the case may be, between the delivery of a mortgage to be recorded and the recording the same. The design of the provision of R. S., c. 125, § 33, which requires “noting on the book and on the mortgage, the time when the same was received,” was to protect the mortgagee during the time between such noting and recording. Upon compliance Avith this provision, the statute proAÜdes, that the mortgage shall be considered as recorded when left as *286 aforesaid with the clerk.” Whether there be a noting or not when the mortgage is delivered for the purpose of being recorded, after it has been duly recorded, the public are bound to take notice of its existence. In Handley v. Howe, 32 Maine, 560, the time when the mortgage was left for the purpose of recordation was not noted, nor was the mortgage recorded at the time of the attachment of the mortgaged goods. It was, therefore, rightly held, that the attachment had the-precedence.

In the case at bar, it is conceded that the mortgage was duly recorded some, days before the attachment of the defendant. The title of the mortgagee is to prevail, unless upon other grounds the mortgage can be successfully impeached.

The mortgager, being indebted to the mortgagee, executed the mortgage to secure him for such indebtedness and against liabilities incurred by indorsing. It appears, that beside intending to secure the plaintiff, that the mortgager had the further design of placing the property mortgaged in such a situation, that it could not be readily attached by his creditors. A fraudulent design on the part of the mortgager is conceded. But his fraud should not defeat the mortgage, unless the mortgagee was conusant of and participant in such fraudulent design. Such is not proved to be the case, and upon this point the burthen of proof is upon the party alleging fraud. The liabilities the plaintiff had incurred, as well as the amount due him, afford a valid and sufficient reason, why he should be desirous of obtaining security upon personal property. There is no such necessary inference of fraud arising either from taking a mortgage for' security, or from the amount of property included in the mortgage, or from the course subsequently pursued by the parties, as to justify us in considering the mortgage in this case as successfully impeached.

The plaintiff has acquired no title to the wood and staves attached, as they were not in the store referred to in. the *287 mortgage at the time of its execution, and the defendant; is entitled to an order for their return.

Judgment for defendant for the wood and staves attached and replevied and for costs. Judgment for plaintiff for remaining goods replevied and costs.