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chases with notice courts of equity will hold Riederer v. Pfaff was a suit for the forethe purchaser a trustee for the benefit of the closure of a chattel mortgage. The question persons whose rights he has thus sought to del considered by the court was whether the fraud or defeat.'

complainant, who had failed to comply with In the case of Dunbar v. Tredennick, 2 a statutory requirement as to filing affidavit Ball & B. p. 319, the court said:

of the renewal of his mortgage, lost the “Why, then, what is the situation of a pur- priority of his mortgage against the claim chaser with notice of a fraudulent title? It certainly may be stated as a general proposition, of a subsequent mortgagee with notice. that a purchaser with notice

is, in equity, bound "It will therefore be assumed, as a settled to the same extent, and in the same manner, as principle, that a person claiming property unthe person from whom he purchased; or, as der a deed or conveyance which has been duly Lord Rosslyn states it in Taylor v. Stibbert: 'If executed and recorded must take it subject to he is a purchaser with notice, he is liable to the all other claims of which he has had actual nosame equity, stands in his place, and is bound tice before the execution of his deed. Because, to do that which the person he represents would after such notice, the accepting and recording of be bound to do by the decree.'* What would a conveyance must be considered in equity as Weir [the purchaser] be bound to do? Why to fraudulent, since the party actually had that nodeliver up these deeds to be canceled, or to re- tice which it was intended by the act of asconvey and to restore the possession ; for notice sembly he might have had by the recording of operates by affecting the conscience of the party. the conveyance of the prior claimant.” Hudson He is a purchaser, it is true, for a valuable con- v. Warner, 2 Har. & G. (Md.) 422. sideration, but he is not a bona fide purchaser; "It is an undoubted principle of equity that he takes a legal title, knowing the right in equi- the owner of property may follow and reclaim ty to belong to another; this is the reasoning it wherever he can find and identify it, until of Lord Hardwicke in Le Neve v. Le Neve. arrested in the pursuit by the countervailing He is not a party to the original fraud, but, if equity of a bona fide purchaser, for a valuable I may apply the reasoning to a civil right, he is consideration paid. A purchaser with notice an accessary after the fact."

that the sale is a breach of trust, or a fraud

upon the rights of the real owner, is particeps Mr. Justice Brewer, then a member of the criminis with the fraudulent vendor, and his Supreme Court of Kansas, said, in Phillips v. purchase cannot protect him against the owner, Reitz, 16 Kan. 397:

because such a purchase is not bona fide."

Gar“If the vendee knew of the fraudulent intent rard v. Pittsburgh & Connelsville R. R. Co., 29

Pa. 158. of the vendor, and bought with that knowledge, he can scarcely claim to be a bona fide pur- Does this complainant escape the effect of chaser, for he was knowingly helping the vendor the equitable doctrine which we are now to accomplish the fraud and do the wrong.'

considering by reason of the language of Among many authorities on the point are the statute in question? According to the the following:

best authority, she does not. In the early "He who takes title to property with knowl and celebrated case of Le Neve v. Le Neve, 2 edge or notice that that title is tainted with w. & T. Leading Cases in Equity, 187, 3 fraud takes it with no better right than he had who was guilty of the fraud ; that is, the fraud Atk. 646, decided in 1747, Lord Hardwicke of the actual wrongdoer may, on the question considered the effect in equity of the absolute of title, be alleged against his successor on language of an early registry act: taking the property." Bigelow on the Law of

"That every such deed shall be void against Fraud, vol. 1, § 12. "The meaning of 'good faith' is synonymous the memorial thereof be registered.'

any subsequent purchaser or mortgagee unless with 'conscience.' It embraces those obligations, which are imposed upon one, in dealing

The Chancellor said: with property, by the circumstances surrounding "What appears, by the preamble, to be the init at the time. The taking of a legal estate tention of the act? Plainly to secure subseafter notice of a prior right makes a person a quent purchasers and mortgagees against prior mala fide purchaser. Undoubtedly it is an act secret conveyances and fraudulent incumbrancsavoring of fraud for a person who has received es. Where a person had no notice of a prior actual direct notice of another's right to go on, conveyance, there the registering his subsequent and knowingly acquire the property in viola- conveyance shall

conveyance shall prevail against the prior; ; tion of that other's right.” Jones, Ch. Mort. but, if he had notice of a prior conveyance, then (5th Ed.) p. 699, $ 484.

that was not a secret_conveyance by which he “In its results, 'good faith' is synonymous with could be prejudiced. The enacting clause says 'conscience." It embraces those obligations that every such deed shall be void against any which are imposed upon one, in dealing with subsequent purchaser or mortgagee, unless the property, by the circumstances surrounding it memorial thereof be registered, etc.; that is, it at the time. It is not questioned but that, at gives him the legal estate, but it does not say the time defendants' mortgages were taken, the that such subsequent purchaser is not left open property was subject to complainant's lien; to any equity which a prior purchaser or inthat Pfaff [the mortgagor] held it subject to cumbrancer may have; for he can be in no dancomplainant's right. That right continues until ger when he knows of another incumbrance, becut off by a superior right-by a right which, in cause he might then have stopped his hand from conscience, is entitled to preference. It is fun- proceeding. * The operation of both acts damental that such preference cannot be acquir- of parliament and the construction of them is ed by any one having notice of the existing right. the same; and it would be a most mischievous Lord Hardwicke laid it down that the taking thing if a person, taking that advantage of the of a legal estate after notice of a prior right legal form appointed by an act of parliament, makes a person a mala fide purchaser. Le Neve might under that protect himself against a perv. Le Neve, 2 White & T. Lead. Cas. Eq. (4th son who had a prior equity, of which he had Am. Ed.) 109. Undoubtedly it is an act savor notice. * The ground of it is plainly ing of fraud for a person who has received this: That the taking of a legal estate after noactual, direct notice of another's right to go on tice of a prior right makes a person a mala fide and knowingly acquire the property, in violation purchaser; and not that he is not a purchaser of that other's right.” Riederer v. Pfaff (C. C.) for a valuable consideration in every other re61 Fed. 873.

spect. This is a species of fraud and dolus malus itself; for he knew the first purchaser pose as a provision for the protection of bona had the clear right of the estate, and, after fide purchasers and creditors, to the effect that knowing that, he takes away the right of an- any deed, valid between the parties and their other person by getting the legal estate. * * * heirs, though neither acknowledged nor recordNow, if a person does not stop his hand, but ed, shall likewise be valid as to other persons gets 'the legal estate when he knew the right having actual notice of it; so that, if any other was in another machinatur ad circumvenien- person having such notice take a conveyance of dum. It is a maxim, too, in our law, that the land covered by the prior deed, he will take 'Fraus et dolus nemini patrocinari debent.' it subject to any right, title, or interest therein Fraud, or, mala fides, therefore, is the true created by the prior deed as fully as if the ground on which the court is governed in the prior deed had been duly acknowledged and recases of notice.” Le Neve v. Le Neve, White corded. It is true that we do not find this con& T. L. Cas. (8th Ed.) vol. 2, pp. 192, 193, 196. struction given to the section by actual decision The principle announced in Le Neve v. Le in any reported case, but there are reported

cases in which the construction is recognized. Neve as applicable to the rights of a subse- Taylor et ux. v. Luther, 2 Sumn. 228 [Fed. quent purchaser or mortgagee, having actual Cas. No. 13,796] ; Nichols v. Reynolds, 1 R. I. notice of a prior unrecorded mortgage, not-30, 36 [36 Am. Dec. 238]. The construction is withstanding the unqualified language of a statutes in other states, some of which follow:

confirmed by numerous decisions under similar registry act, has been generally accepted by Norcross v. Widgery, 2 Mass. 506; State of courts of equity and 'text-writers upon the Connecticut v. Bradish, 14 Mass. 296; Trull v. subject from 1747 to the present.

It has Bigelow, 16 Mass. 406 [8 Am. Dec. 141]; Jackbeen followed by this court as, a proper in- son dem. Gilbert v. Burgott, 10 Johns. [N. Y.]

457 [6 Am. Dec. 349]; Van Rensselaer v. terpretation of a registry statute and as Clark, 17 Wend. [N. Y.] 25 [31 Am. Dec. 280]; stating an exception to be understood as Rogers v. Jones, 8 N. H. 264; Emmons v. modifying the absolute language of such stat- Murray, 16 N. H. 412; Hart et ål. v. Farmers

& Mechanics' Bank et al., 33 Vt. 252; Ohio utes when the language, upon a literal read- Life Insurance Co. v. Ledyard, 8 Ala. 866; ing, appears to be in conflict with the pur- Rupert et al. v. Mark, 15 Ill. 540. Correy's pose of such acts and with the equitable doc- Lessee v. Caxton & Rees, 4 Bin. [Pa.] 140. The

Massachusetts statute provided that the conveytrine of constructive fraud arising from no

ance should not be good and effectual against tice. The principle was recognized in Har- any other person than the grantor and his heirs, ris v. Arnold, 1 R. I. 125, at pages 136 and unless acknowledged and recorded.' 'But,' said 137. It was fully considered and approved if the second "purchaser has notice of the first

Parsons, C. J., in Norcross v. Widgery, supra, in Westerly Savings Bank v. Stillman, 16 R. conveyance, the intent of the statute is anI. 497, 17 Atl. 918, in an opinion written by swered, and his purchase afterwards is a fraudChief Justice Durfee, and has never been ulent act.' This construction finds countenance questioned by this court since that time.

in the wording of the statutes of some of the

states; but the construction is the same, genWesterly Savings Bank v. Stillman was a erally, even where the statutes declare unqualsuit in equity to establish the lien of a mort- ifiedly that unregistered conveyances shall be gage which had not been acknowledged and void as against purchasers, or as against all perrecorded in conformity with a statutory pro- Neve . Le Neve. Ambler, 436; 2° White &

sons who are not parties to the conveyance. Le vision. The language of the statute then un- Tudor Lead. Cas. Eq. (4th Amer. Ed.) 109, and der consideration was that of section 4, c. cases cited in American notes on pages 213, 214. 173, Pub. Stat. R. I., as follows:

We think our statute always has been, and “Sec. 4. All bargains, sales, and other con- manner.”

should continue to be, construed in the same. veyances whatsoever of any lands, tenements or hereditaments, whether they be made for pass- It should be observed that the language of ing any estate of freehold or inheritance, or for the section then under consideration is as term of years exceeding the term of one year, and all deeds of trust and mortgages whatso- absolute and unqualified as that of the secever, which shall hereafter be made and exe- tion now before us. cuted, shall be void, unless they shall be ac

The provision of said section of the Public knowledged and recorded as aforesaid: Provided, that the same, between the parties and Statutes was that the conveyances named their heirs, shall nevertheless be valid and bind- therein should be void unless acknowledged ing."

and recorded. The provision of section 10 The court said:

of the General Laws 1909 is that no mort“The section referred to declares that all con- gage of personal property shall be valid as. veyances of real estate for more than a year,

to any person until possession of the mortand all deeds of trust and mortgages, shall be void unless they shall be acknowledged and re- gaged property be taken and retained by corded, provided that between the parties and the mortgagee or the mortgage be recorded. their heirs they shall be valid. The language, In each of these sections there is a similar taken literally, is absolute, and, under it so provision making the respective conveyances taken, A. might stand by and see B. convey valid as to the parties thereto, although the deed from B. of the same lot in due form, and if respective statute be, not complied with. Is the deed to C. should happen not to have been there any other provision in section 10 of the acknowledged, or, if acknowledged, should hap- General Laws which renders the rule of pen not to have been forthwith recorded, could acquire the better title by lodging his deed for construction adopted in Westerly Savings . record. We do not understand, however, that Bank v. Stillman inapplicable to that secthe section has even been construed so as to tion? In said section 10 there is the further

; that it has always, notwithstanding the abso provision that the recording or the taking luteness of its language, been construed to be and retaining of possession shall be made subject to an exception, implied from its pur- or taken within five days from the date of the signing of the mortgage. Does this dealing with an instrument which was claimclause render said section 10 essentially dif- ed to be invalid by one test; we are dealing ferent from said section of the Public Stat- with an instrument which is claimed to be utes and relieve it from the application of invalid according to the other test. But in the rule laid down in Westerly Savings Bank each case the invalidity claimed is based upv. Stillman? It is clear that to hold thus on like unlimited statutory language. I have would be to attempt to draw a distinction be sought to emphasize the consideration that tween the two sections, in regard to the point the language employed in each of these two now under consideration which is altogether sections, taken literally, is equally absolute unreasonable and illogical. It would be to and without exception; that for the same magnify a verbal variance into a vital and purpose which is behind all registry statutes, legal distinction, where none could have been with no stronger or different purpose in one intended. By the provisions of said section act than in the other the Legislature, by lanof the Public Statutes the conveyances there- guage equally positive, has provided for the in named were to be invalid as to all persons invalidity of certain instruments in the cirsave the parties thereto, unless said con- cumstances respectively set out in the two veyances were acknowledged and recorded; acts; and that in the construction of both the strongest interpretation that can be plac- acts any equitable principle which would ed upon the later act, regarding personal read an exception into the absolute language property mortgages, is that they are to be of one with equal force would require an exinvalid as to all persons except the parties ception to be understood as to the operation thereto, unless possession of the chattels of the other. be taken and retained, or unless said mort- Nor can it with reason be said that there gages be recorded in five days. According is any expression which indicates a desire on to the strict language of each section a con- the part of the Legislature to limit the rule dition of invalidity is provided for if the re- of construction as to registry statutes adoptquirement of the respective statute is dis- ed by this court in Westerly Savings Bank regarded; in one case, if the conveyance is v. Stillman. Rather must it be inferred from not acknowledged and recorded; in the the absence of such provision that the Legother if the mortgagee fails to do one or the islature was satisfied with that construction, other of the things therein prescribed within and did not desire to interfere with its confive days. It would be a perversion of rea- tinuance. Westerly Savings Bank v. Stillsoning to hold that the Legislature intended man was decided in 1889. The section relatto provide for a higher or a different de- ing to personal property mortgages now ungree of invalidity in the latter section than der consideration was first adopted in 1899. in the former, or to create in the latter sec- This court had said explicitly that, in equity tion a condition of invalidity which would at least, the construction of all registry statbe unaffected by any equitable principle utes' should be the same whether such statwhich should be applied to the former. Iutes in terms provided that an unrecorded take it there are no degrees of invalidity. mortgage was valid as against a purchaser Under the former section the holder of cer- with notice or was silent on that subject. tain conveyances, unacknowledged and un- That had remained the settled rule of conrecorded, according to the absolute language struction in our courts for ten years, and yet of that section, was the holder of an invalid this statute was passed without an attempt conveyance save as to the parties. Under on the part of the Legislature, by any lanthe latter section the holder of a chattel guage in the act, to neutralize or limit this mortgage who had not taken and retained established rule of construction. The case possession of the chattels or had not record of Westerly Savings Bank v. Stillman must ed said mortgage within five days, by the be regarded as the ruling authority in this absolute language of that section, was the state upon the question now under consideraholder of an invalid personal property mort- tion, and is decisive of the case at bar. gage save as to the parties. Each holder The view taken by the English Court of under the conditions named was in exactly Chancery and by this court in Westerly Savthe same category as to the validity of his ings Bank v. Stillman is in agreement with conveyance or his mortgage and a rule of the great weight of English and American construction applicable to one statute, which authority. declared the invalidity of the conveyance, is

91 A.-2

In 1 Story's Equity Jurisprudence, the auequally applicable to the other statute, which thor, in the course of his treatment of the declared the invalidity of the chattel mort subject of constructive fraud, says, at secgage. In one case the invalidity was based tion 397: upon the absence of acknowledgment or rec- where the registration of conveyances is required

"It is upon the same ground that in countries ord; in the other it was based upon the ab- \ in order to make them perfect titles against subsence of possession or record within five sequent purchasers, if a subsequent purchaser days. The test of validity or invalidity pro- has notice at the time of his purchase of any vided in the two cases differed, but the con- prior, unregistered conveyance, he shall not be dition of invalidity was the same. In West

permitted to avail himself of his title against

that prior conveyance. This has been long the erly Savings Bank v. Stillman the court was settled doctrine in courts of equity; and it is often applied in America, although not in Eng-edge of such equity is everywhere regarded as

land, in courts of law as a just exposition of made in bad faith; and this is a doctrine of · the registry acts. The object of all acts of this equity, of universal application, holding that a

sort is to secure subsequent purchasers and purchaser cannot in conscience hold a legal esmortgagees against prior secret conveyances and tate so acquired; there being no equity united incumbrances. But, where such purchasers and with it. In the case before us as made by mortgagees have notice of any prior conveyance, the bill, Lawrence [the first mortgagee] parted it is impossible to hold that it is a secret convey- with his money and received this mortgage in ance by which they are prejudiced. On the oth-good faith. As between him and Haskill [the er hand, the neglect to register a prior convey- mortgagor), the title, both legal and equitable, ance is often a matter of mistake or of over- passed. As to subsequent purchasers and mortweening confidence in the grantor; and it would gagees, he was clothed with the equitable title, be a manifest fraud to allow him to avail him- and the attempt to sell the property afterwards self of the power by any connivance with others to another, and thus defeat the equitable title to defeat such prior conveyance.

before created, would on the part of Haskill be

the grossest bad faith; and, if the second mortIn Patten v. Moore, 32 N. H. 382, two part- gagee had notice of the prior equity, he would ners, being the owners of certain standing be justly charged with participating in the timber, executed a mortgage on the same to fraud. Indeed, there is no doctrine of equity the complainant, but all the formalities re- more generally recognized than that which dequired by law were not completed and the and we are wholly unable to perceive any good

nounces such a purchase as made in bad faith; mortgage recorded until November 3, 1851. reason why it should not be applied in its full On October 23, 1851, one of the partners, who force in a case like the one stated in the bill; had purchased his copartner's interest, con- cases in our own courts."

and this, we think, accords with the adjudged veyed said timber to the respondent, who had knowledge of the complainant's mort

[6] Under the authorities the complainant gage. The respondent claimed the timber as must be held guilty of fraud in knowingly a bona fide purchaser, alleging that the com- entering into the transaction with the mortplainant's mortgage was invalid against gagor, Miss Vaill, to defeat the legal and him; it never having been completed and equitable rights of the respondent. The recorded till November 3, 1851. The court respondent in good faith had parted with said:

his money, and had received therefor the “The principle of equity is unquestioned that mortgage in question. In the sale of the one who buys property with notice of an exist- chattels by Miss Vaill to the complainant, ing right of a third person, either legal or equi- these two women, Miss Vaill as principal table, shall be deemed to have made his purchase and the complainant as particeps criminis, in bad faith, and to be guilty of a fraud, so that he will not be permitted to set up his purchase were guilty of fraud involving moral turagainst such right. * * It is no answer to pitude in thus combining in the attempt to this to say that the mortgage was at that time deprive this respondent of his security and invalid. As between the parties, a mortgage is sufficient without any oath, and without either to cheat him of his money justly due. It possession or recording. Rev. Stat. 248, c. 132, would be a most unheard of and monstrous § 7. And in that case, if before, or at the time exercise of the equity jurisdiction of this of his purchase, William Moore (the respondent] court to grant this complainant the relief had notice that there was even a defective and voidable mortgage, as to a bona fide purchaser, which she seeks upon a claim based on her he was chargeable with notice of all the facts own moral delinquency and fraud. Such acat that time existing relative to that mortgage, tion by the court would be in disregard of and at best would stand in no better position the maxim that “He that hath committed inthan Moore and Gage [said partners]."

iquity shall not have equity." In Gooding v. Riley, 50 N. H. 400, at page,

The complainant's bill must be dismissed. 411, the court said:

On July 10, 1914, at 10 o'clock a. m., the re"The English registry acts provided that conveyances of land should be deemed fraudulent spondent may present to this court a form of and void as against subsequent purchasers and decree to be entered in the superior court mortgagees, unless a memorial of such convey- dismissing the complainant's bill and awardances was registered; but it was very soon the ing costs to the respondent. established doctrine in equity that such prior deed or incumbrance, though not registered, created an equitable title in the grantee, and that, as the object of these statute provisions was to

VINCENT, J. (dissenting.) This is a suit protect subsequent purchasers and incumbranc- in equity whereby the complainant seeks to ers against secret conveyances, notice to them restrain the respondent from taking posseswould be equivalent to registry. Le Neve v. Le sion of certain personal property and from Neve, 3 Atk. 646; and see Dickerson v. Tillinghast,'4 Paige [N. Y.] 221 [25 Am. Dec. 528). foreclosing or treating as valid a certain In such cases courts of equity lend their aid to mortgage upon the same and to have said protect the holders of such equitable titles mortgage delivered up and canceled. against subsequent purchasers and others, with notices of such equity, as in all other cases

A restraining order was issued which was where there is a prior equitable title which continued after a hearing upon the motion courts of equity would enforce. Whenever a for a preliminary injunction and is still in party, who has purchased and paid for the prop- force. erty of another, has taken a promise to convey

Subsequently, after the pleadings it, or has taken a conveyance which is good as were closed, and after a hearing in the subetween the parties, but not as to others for perior court upon the entry of a final decree, want of registration or the like, he will in equi. the case was certified to this court under ty be regarded as having the equitable title, which will prevail against a subsequent gran? section 35, c. 289, Gen. Laws of R. I., upon an tee having notice of it. A purchase with knowl- agreed statement of facts.

From the facts, as stated, it appears that The respondent claims that, notwithstandon or before September 28, 1910, Julia M. ing the specific terms of the statute, the reVaill, now deceased, executed and delivered cording of a personal property mortgage afto the respondent the mortgage under con- (ter the expiration of more than five days sideration, covering personal property then from the date of the signing thereof acts as owned by Miss Vaill and located in New a constructive notice to those who may take Shoreham, R. I. The respondent never took a conveyance subsequent to such recording, possession of the mortgaged chattels, nor did and that as against them such a mortgage he have the said mortgage recorded within would be valid. five days from the date of the signing there- Our statute, before quoted, contains the of, but the same was placed on record in imperative provision that no mortgage of New Shoreham on October 26, 1910. Later, personal property shall be valid until the on July 18, 1911, Miss Vaill, by a bill of sale, mortgagee shall take possession of the mortsold and conveyed the chattels described in gaged property or until he shall record his the said mortgage to the complainant, who mortgage, and that such possession or rethereupon took, and has since retained, pos- cording shall take place within five days from session of the same.

the date upon which the mortgage is signed. The complainant at the time when she pur- | As the court said in Haythorn v. Van Keuren chased the property-July 18, 1911—knew & Son, 79 N. J. Law, 101, 74 Atl. 502: of the existence of the said mortgage to the "The presumption is that the word 'shall' in respondent, and that the same then appeared a statute is used in an imperative, and not in of record. The indebtedness for which the tion is sought, it must rest upon something in

a directory, sense. If a different interpretasaid mortgage was given has not been paid, the character of the legislation or in the conthe interest thereon is in default, and there- text which will justify a different meaning. fore the respondent claims the right to take In thus making the record of the mortgage possession of and sell the property covered imperative within a specified time, the Legisby said mortgage under the provisions there- lature must have had some object in view, of. The respondent also claims that the and must have intended that the failure to mortgage is valid as to the complainant be- record should have some bearing and some cause the complainant knew of its existence effect on the validity of the instrument. It and record prior to her alleged purchase of seems to me that the Legislature, in using the property which the mortgage describes. the language which we find in the statute,

On the other hand, the complainant claims intended that a mortgage which remained that said mortgage has no validity what- unrecorded for a period of five days should ever; it not having been recorded within five have no further legal existence, except as days from the date of the signing thereof as between the parties. The fixing of a definite required by section 10, c. 258, of the .Gen. period within which a mortgage must be reLaws of 1909.

corded places the mortgage upon a different The case presents but a single issue, and footing from mortgages made under statutes that is whether or not a mortgagee, who has where no special time for recording is fixed. neither taken possession of the mortgaged This difference has been recognized by this property nor recorded his mortgage within court in the case of Burdick v. Coates, 22 the time required by statute, can still main- R. I. 410, 48 Atl. 389, in which the court, tain his mortgage as against the mortgagor's referring to the case of Commercial Bank vendee who purchases the property with full v. Colton, 17 R. I. 226, 21 Atl. 349, used the knowledge of the existence of the mortgage. following language: The statute which fixes the time within which “The mortgage was recorded prior to the mortgages of personal property shall be re- assignment, and there was no provision in the

statute as to the time when it should be recorded is section 10, c. 258, Gen. Laws of corded. The present statute is quite different; R. I., and is as follows:

and, under a similar statute in Massachusetts it “Sec. 10. No mortgage of personal property that an attachment made before the mortgage

was held, in Drew v. Streeter, 137 Mass. 460, hereafter made shall be valid as to the assignee was recorded, even though the record was within insolvency of the mortgagor, or any other in the statutory period, took precedence of the person except the parties thereto and their executors and administrators, until possession of

mortgage.” the mortgaged property be delivered to and re- In the later case of Ziegler v. Thayer, 34 tained by the mortgagee, or the said mortgage R. I. 288, 83 Atl. 266, the court said, in be recorded in the records of mortgages or per: quoting from In re Ronk (D. C.) 111 Fed. 154: sonal property in the town or city where the mortgagor shall reside, if in this state; and if "It is apparent that it was the purpose of not in this state, then in the town where the the Legislature to allow no valid claim, lien, property is at the time of making said mort- or secret equity to be created on goods, unless gage; which said recording or taking and re- public disclosure was made either by delivery tention of possession as aforesaid shall be made of the goods to the assignee or mortgagee and or taken within five days from the date of the the retention thereof by him, or by recording signing thereof: Provided, that nothing herein the assignment or mortgage within 10 days. contained shall be so construed as to affect any To hold otherwise would be to defeat the bentransfer of property under bottomry or re- eficial effect of the recording statute." spondentia bonds, or of any ship or goods at

There are, however, some authorities which sea or abroad, if the mortgagee shall take possession thereof as soon as may be after the

ar- support the respondent's contention that rerival of the same in this state.”

cording, however long delayed, acts as con

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