Page images
PDF
EPUB
[blocks in formation]

In the case of Dunbar v. Tredennick, 2 Ball & B. p. 319, the court said:

"Why, then, what is the situation of a purchaser with notice of a fraudulent title? It certainly may be stated as a general proposition, that a purchaser with notice is, in equity, bound to the same extent, and in the same manner, as the person from whom he purchased; or, as Lord Rosslyn states it in Taylor v. Stibbert: 'If he is a purchaser with notice, he is liable to the same equity, stands in his place, and is bound to do that which the person he represents would be bound to do by the decree.' What would Weir [the purchaser] be bound to do? Why to deliver up these deeds to be canceled, or to reconvey and to restore the possession; for notice operates by affecting the conscience of the party. He is a purchaser, it is true, for a valuable consideration, but he is not a bona fide purchaser; he takes a legal title, knowing the right in equity to belong to another; this is the reasoning of Lord Hardwicke in Le Neve v. Le Neve. He is not a party to the original fraud, but, if I may apply the reasoning to a civil right, he is an accessary after the fact."

Mr. Justice Brewer, then a member of the Supreme Court of Kansas, said, in Phillips v. Reitz, 16 Kan. 397:

"If the vendee knew of the fraudulent intent of the vendor, and bought with that knowledge, he can scarcely claim to be a bona fide purchaser, for he was knowingly helping the vendor to accomplish the fraud and do the wrong."

[ocr errors]

Among many authorities on the point are the following:

"He who takes title to property with knowl edge or notice that that title is tainted with fraud takes it with no better right than he had who was guilty of the fraud; that is, the fraud of the actual wrongdoer may, on the question of title, be alleged against his successor on taking the property." Bigelow on the Law of Fraud, vol. 1, § 12.

"The meaning of 'good faith' is synonymous with 'conscience.' It embraces those obligations, which are imposed upon one, in dealing with property, by the circumstances surrounding it at the time. The taking of a legal estate after notice of a prior right makes a person a mala fide purchaser. Undoubtedly it is an act savoring of fraud for a person who has received actual direct notice of another's right to go on, and knowingly acquire the property in violation of that other's right." Jones, Ch. Mort. (5th Ed.) p. 699, § 484.

"In its results, 'good faith' is synonymous with 'conscience.' It embraces those obligations which are imposed upon one, in dealing with property, by the circumstances surrounding it at the time. It is not questioned but that, at the time defendants' mortgages were taken, the property was subject to complainant's lien; that Pfaff [the mortgagor] held it subject to complainant's right. That right continues until cut off by a superior right-by a right which, in conscience, is entitled to preference. It is fundamental that such preference cannot be acquired by any one having notice of the existing right. Lord Hardwicke laid it down that the taking of a legal estate after notice of a prior right makes a person a mala fide purchaser. Le Neve v. Le Neve, 2 White & T. Lead. Cas. Eq. (4th Am. Ed.) 109. Undoubtedly it is an act savoring of fraud for a person who has received actual, direct notice of another's right to go on and knowingly acquire the property, in violation of that other's right." Riederer v. Pfaff (C. C.) 61 Fed. 873.

Riederer v. Pfaff was a suit for the foreclosure of a chattel mortgage. The question considered by the court was whether the complainant, who. had failed to comply with a statutory requirement as to filing affidavit of the renewal of his mortgage, lost the priority of his mortgage against the claim of a subsequent mortgagee with notice. "It will therefore be assumed, as a settled principle, that a person claiming property under a deed or conveyance which has been duly executed and recorded must take it subject to all other claims of which he has had actual notice before the execution of his deed. Because, after such notice, the accepting and recording of a conveyance must be considered in equity as fraudulent, since the party actually had that notice which it was intended by the act of assembly he might have had by the recording of the conveyance of the prior claimant." Hudson v. Warner, 2 Har. & G. (Md.) 422.

"It is an undoubted principle of equity that the owner of property may follow and reclaim it wherever he can find and identify it, until arrested in the pursuit by the countervailing equity of a bona fide purchaser, for a valuable consideration paid. A purchaser with notice that the sale is a breach of trust, or a fraud criminis with the fraudulent vendor, and his upon the rights of the real owner, is particeps purchase cannot protect him against the owner, because such a purchase is not bona fide." Garrard v. Pittsburgh & Connelsville R. R. Co., 29

Pa. 158.

Does this complainant escape the effect of the equitable doctrine which we are now considering by reason of the language of the statute in question? According to the best authority, she does not. In the early and celebrated case of Le Neve v. Le Neve, 2 W. & T. Leading Cases in Equity, 187, 3 Atk. 646, decided in 1747, Lord Hardwicke considered the effect in equity of the absolute language of an early registry act:

"That every such deed shall be void against the memorial thereof be registered." any subsequent purchaser or mortgagee unless

The Chancellor said:

"What appears, by the preamble, to be the intention of the act? Plainly to secure subsequent purchasers and mortgagees against prior secret conveyances and fraudulent incumbrances. Where a person had no notice of a prior conveyance, there the registering his subsequent conveyance shall prevail against the prior; but, if he had notice of a prior conveyance, then that was not a secret conveyance by which he could be prejudiced. The enacting clause says that every such deed shall be void against any subsequent purchaser or mortgagee, unless the memorial thereof be registered, etc.; that is, it gives him the legal estate, but it does not say that such subsequent purchaser is not left open to any equity which a prior purchaser or incumbrancer may have; for he can be in no danger when he knows of another incumbrance, because he might then have stopped his hand from proceeding. * ** The operation of both acts of parliament and the construction of them is the same; and it would be a most mischievous thing if a person, taking that advantage of the legal form appointed by an act of parliament, might under that protect himself against a person who had a prior equity, of which he had notice. * * The ground of it is plainly this: That the taking of a legal estate after notice of a prior right makes a person a mala fide purchaser; and not that he is not a purchaser for a valuable consideration in every other respect. This is a species of fraud and dolus

malus itself; for he knew the first purchaser had the clear right of the estate, and, after knowing that, he takes away the right of another person by getting the legal estate. ** Now, if a person does not stop his hand, but gets the legal estate when he knew the right was in another machinatur ad circumveniendum. It is a maxim, too, in our law, that 'Fraus et dolus nemini patrocinari debent.' Fraud, or mala fides, therefore, is the true ground on which the court is governed in the cases of notice." Le Neve v. Le Neve. White & T. L. Cas. (8th Ed.) vol. 2, pp. 192, 193, 196. The principle announced in Le Neve v. Le Neve as applicable to the rights of a subsequent purchaser or mortgagee, having actual notice of a prior unrecorded mortgage, not-30, 36 [36 Am. Dec. 238]. The construction is withstanding the unqualified language of a registry act, has been generally accepted by courts of equity and text-writers upon the subject from 1747 to the present. It has been followed by this court as, a proper interpretation of a registry statute and as stating an exception to be understood as modifying the absolute language of such statutes when the language, upon a literal reading, appears to be in conflict with the purpose of such acts and with the equitable doctrine of constructive fraud arising from notice. The principle was recognized in Harris v. Arnold, 1 R. I. 125, at pages 136 and 137. It was fully considered and approved in Westerly Savings Bank v. Stillman, 16 R. I. 497, 17 Atl. 918, in an opinion written by Chief Justice Durfee, and has never been questioned by this court since that time.

Westerly Savings Bank v. Stillman was a suit in equity to establish the lien of a mortgage which had not been acknowledged and recorded in conformity with a statutory provision. The language of the statute then under consideration was that of section 4, c. 173, Pub. Stat. R. I., as follows:

"Sec. 4. All bargains, sales, and other conveyances whatsoever of any lands, tenements or hereditaments, whether they be made for passing any estate of freehold or inheritance, or for term of years exceeding the term of one year, and all deeds of trust and mortgages whatsoever, which shall hereafter be made and executed, shall be void, unless they shall be acknowledged and recorded as aforesaid: Provided, that the same, between the parties and their heirs, shall nevertheless be valid and binding."

The court said:

"The section referred to declares that all conveyances of real estate for more than a year, and all deeds of trust and mortgages, shall be void unless they shall be acknowledged and recorded, provided that between the parties and their heirs they shall be valid. The language, taken literally, is absolute, and, under it so taken, A. might stand by and see B. convey a lot of land to C. by deed, and then take a deed from B. of the same lot in due form, and if the deed to C., should happen not to have been acknowledged, or, if acknowledged, should happen not to have been forthwith recorded, could acquire the better title by lodging his deed for record. We do not understand, however, that the section has even been construed so as to permit this; on the contrary we understand that it has always, notwithstanding the absoluteness of its language, been construed to be subject to an exception, implied from its pur91 A.-2

pose as a provision for the protection of bona fide purchasers and creditors, to the effect that any deed, valid between the parties and their heirs, though neither acknowledged nor recorded, shall likewise be valid as to other persons having actual notice of it; so that, if any other person having such notice take a conveyance of the land covered by the prior deed, he will take it subject to any right, title, or interest therein created by the prior deed as fully as if the prior deed had been duly acknowledged and recorded. It is true that we do not find this construction given to the section by actual decision in any reported case, but there are reported cases in which the construction is recognized. Taylor et ux. v. Luther, 2 Sumn. 228 [Fed. Cas. No. 13,796]; Nichols v. Reynolds, 1 R. I. statutes in other states, some of which follow: confirmed by numerous decisions under similar Norcross v. Widgery, 2 Mass. 506; State of Connecticut v. Bradish, 14 Mass. 296; Trull v. Bigelow, 16 Mass. 406 [8 Am. Dec. 144]; Jack457 [6 Am. Dec. 3491; Van Rensselaer v. son dem. Gilbert v. Burgott, 10 Johns. [N. Y.] Clark, 17 Wend. [N. Y.] 25 [31 Am. Dec. 280]; Rogers v. Jones, 8 N. H. 264; Emmons v. Murray, 16 N. H. 412; Hart et al. v. Farmers' & Mechanics' Bank et al., 33 Vt. 252; Ohio Life Insurance Co. v. Ledyard, 8 Ala. 866; Rupert et al. v. Mark, 15 Ill. 540. Correy's Lessee v. Caxton & Rees, 4 Bin. [Pa.] 140. The ance should not 'be good and effectual against. Massachusetts statute provided that the conveyany other person than the grantor and his heirs, unless acknowledged and recorded.' 'But,' said if the second purchaser has notice of the first Parsons, C. J., in Norcross v. Widgery, supra, conveyance, the intent of the statute is answered, and his purchase afterwards is a fraudulent act.' This construction finds countenance in the wording of the statutes of some of the states; but the construction is the same, generally, even where the statutes declare unqualifiedly that unregistered conveyances shall be void as against purchasers, or as against all perNeve v. Le Neve, Ambler, 436; 2 White & sons who are not parties to the conveyance. Le Tudor Lead. Cas. Eq. (4th Amer. Ed.) 109, and cases cited in American notes on pages 213, 214. We think our statute always has been, and should continue to be, construed in the same. manner."

It should be observed that the language of the section then under consideration is as absolute and unqualified as that of the section now before us.

The provision of said section of the Public Statutes was that the conveyances named therein should be void unless acknowledged and recorded. The provision of section 10 of the General Laws 1909 is that no mortgage of personal property shall be valid as to any person until possession of the mortgaged property be taken and retained by the mortgagee or the mortgage be recorded. In each of these sections there is a similar provision making the respective conveyances valid as to the parties thereto, although the respective statute be, not complied with. Is there any other provision in section 10 of the General Laws which renders the rule of construction adopted in Westerly Savings Bank v. Stillman inapplicable to that section? In said section 10 there is the further provision that the recording or the taking and retaining of possession shall be made or taken within five days from the date of

the signing of the mortgage. Does this clause render said section 10 essentially different from said section of the Public Statutes and relieve it from the application of the rule laid down in Westerly Savings Bank v. Stillman? It is clear that to hold thus would be to attempt to draw a distinction be tween the two sections, in regard to the point now under consideration which is altogether unreasonable and illogical. It would be to magnify a verbal variance into a vital and legal distinction, where none could have been intended. By the provisions of said section of the Public Statutes the conveyances therein named were to be invalid as to all persons save the parties thereto, unless said conveyances were acknowledged and recorded; the strongest interpretation that can be placed upon the later act, regarding personal property mortgages, is that they are to be invalid as to all persons except the parties thereto, unless possession of the chattels be taken and retained, or unless said mortgages be recorded in five days. According to the strict language of each section a condition of invalidity is provided for if the requirement of the respective statute is disregarded; in one case, if the conveyance is not acknowledged and recorded; in in the other if the mortgagee fails to do one or the other of the things therein prescribed within five days. It would be a perversion of reasoning to hold that the Legislature intended to provide for a higher or a different degree of invalidity in the latter section than in the former, or to create in the latter section a condition of invalidity which would be unaffected by any equitable principle which should be applied to the former. I take it there are no degrees of invalidity. Under the former section the holder of certain conveyances, unacknowledged and unrecorded, according to the absolute language of that section, was the holder of an invalid conveyance save as to the parties. Under the latter section the holder of a chattel mortgage who had not taken and retained possession of the chattels or had not recorded said mortgage within five days, by the absolute language of that section, was the holder of an invalid personal property mortgage save as to the parties. Each holder under the conditions named was in exactly the same category as to the validity of his conveyance or his mortgage and a rule of construction applicable to one statute, which declared the invalidity of the conveyance, is equally applicable to the other statute, which declared the invalidity of the chattel mortgage. In one case the invalidity was based upon the absence of acknowledgment or record; in the other it was based upon the absence of possession or record within five days. The test of validity or invalidity provided in the two cases differed, but the condition of invalidity was the same. In Westerly Savings Bank v. Stillman the court was

dealing with an instrument which was claimed to be invalid by one test; we are dealing with an instrument which is claimed to be invalid according to the other test. But in each case the invalidity claimed is based upon like unlimited statutory language. I have sought to emphasize the consideration that the language employed in each of these two sections, taken literally, is equally absolute and without exception; that for the same purpose which is behind all registry statutes, with no stronger or different purpose in one act than in the other the Legislature, by language equally positive, has provided for the invalidity of certain instruments in the circumstances respectively set out in the two acts; and that in the construction of both acts any equitable principle which would read an exception into the absolute language of one with equal force would require an exception to be understood as to the operation of the other.

Nor can it with reason be said that there is any expression which indicates a desire on the part of the Legislature to limit the rule of construction as to registry statutes adopted by this court in Westerly Savings Bank v. Stillman. Rather must it be inferred from the absence of such provision that the Legislature was satisfied with that construction, and did not desire to interfere with its continuance. Westerly Savings Bank v. Stillman was decided in 1889. The section relating to personal property mortgages now under consideration was first adopted in 1899. This court had said explicitly that, in equity at least, the construction of all registry statutes should be the same whether such statutes in terms provided that an unrecorded mortgage was valid as against a purchaser with notice or was silent on that subject. That had remained the settled rule of construction in our courts for ten years, and yet this statute was passed without an attempt on the part of the Legislature, by any language in the act, to neutralize or limit this established rule of construction. The case of Westerly Savings Bank v. Stillman must be regarded as the ruling authority in this state upon the question now under consideration, and is decisive of the case at bar.

The view taken by the English Court of Chancery and by this court in Westerly Savings Bank v. Stillman is in agreement with the great weight of English and American authority.

In 1 Story's Equity Jurisprudence, the author, in the course of his treatment of the subject of constructive fraud, says, at section 397:

"It is upon the same ground that in countries in order to make them perfect titles against subwhere the registration of conveyances is required sequent purchasers, if a subsequent purchaser has notice at the time of his purchase of any prior unregistered conveyance, he shall not be permitted to avail himself of his title against that prior conveyance. This has been long the 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 the registry acts. The object of all acts of this sort is to secure subsequent purchasers and mortgagees against prior secret conveyances and incumbrances. But, where such purchasers and mortgagees have notice of any prior conveyance, it is impossible to hold that it is a secret conveyance by which they are prejudiced. On the other hand, the neglect to register a prior conveyance is often a matter of mistake or of overweening confidence in the grantor; and it would be a manifest fraud to allow him to avail himself of the power by any connivance with others to defeat such prior conveyance."

[ocr errors]

made in bad faith; and this is a doctrine of equity, of universal application, holding that a purchaser cannot in conscience hold a legal estate so acquired; there being no equity united with it. In the case before us as made by the bill, Lawrence [the first mortgagee] parted with his money and received this mortgage in good faith. As between him and Haskill [the mortgagor], the title, both legal and equitable, passed. As to subsequent purchasers and mortgagees, he was clothed with the equitable title, and the attempt to sell the property afterwards to another, and thus defeat the equitable title before created, would on the part of Haskill be In Patten v. Moore, 32 N. H. 382, two part-gagee had notice of the prior equity, he would the grossest bad faith; and, if the second mortners, 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 denounces such a purchase as made in bad faith; quired by law were not completed and the and we are wholly unable to perceive any good 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 mortgage. The respondent claimed the timber as a bona fide purchaser, alleging that the complainant's mortgage was invalid against him; it never having been completed and recorded till November 3, 1851. The court said:

[ocr errors]

"The principle of equity is unquestioned that one who buys property with notice of an existing right of a third person, either legal or equitable, shall be deemed to have made his purchase in bad faith, and to be guilty of a fraud, so that he will not be permitted to set up his purchase against such right. *It is no answer to this to say that the mortgage was at that time invalid. As between the parties, a mortgage is sufficient without any oath, and' without either possession or recording. Rev. Stat. 248, c. 132, § 7. And in that case, if before, or at the time of his purchase, William Moore [the respondent] had notice that there was even a defective and voidable mortgage, as to a bona fide purchaser, he was chargeable with notice of all the facts at that time existing relative to that mortgage, and at best would stand in no better position than Moore and Gage [said partners]."

In Gooding v. Riley, 50 N. H. 400, at page, 411, the court said:

The

[6] Under the authorities the complainant must be held guilty of fraud in knowingly entering into the transaction with the mortgagor, Miss Vaill, to defeat the legal and equitable rights of the respondent. respondent in good faith had parted with his money, and had received therefor the mortgage in question. In the sale of the chattels by Miss Vaill to the complainant, these two women, Miss Vaill as principal and the complainant as particeps criminis, were guilty of fraud involving moral turpitude in thus combining in the attempt to deprive this respondent of his security and to cheat him of his money justly due. It would be a most unheard of and monstrous exercise of the equity jurisdiction of this court to grant this complainant the relief which she seeks upon a claim based on her own moral delinquency and fraud. Such action by the court would be in disregard of the maxim that "He that hath committed iniquity shall not have equity."

The complainant's bill must be dismissed. On July 10, 1914, át 10 o'clock a. m., the respondent may present to this court a form of decree to be entered in the superior court dismissing the complainant's bill and awarding costs to the respondent.

"The English registry acts provided that conveyances of land should be deemed fraudulent and void as against subsequent purchasers and mortgagees, unless a memorial of such conveyances was registered; but it was very soon the 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. Lesion of certain personal property and from Neve, 3 Atk. 646; and see Dickerson v. Tillinghast, 4 Paige [N. Y.] 221 [25 Am. Dec. 528]. In such cases courts of equity lend their aid to protect the holders of such equitable titles against subsequent purchasers and others, with notices of such equity, as in all other cases where there is a prior equitable title which courts of equity would enforce. Whenever a party, who has purchased and paid for the property of another, has taken a promise to convey it, or has taken a conveyance which is good as between the parties, but not as to others for want of registration or the like, he will in equity be regarded as having the equitable title,

which will prevail against a subsequent grantee having notice of it. A purchase with knowl

foreclosing or treating as valid a certain mortgage upon the same and to have said mortgage delivered up and canceled.

A restraining order was issued which was continued after a hearing upon the motion for a preliminary injunction and is still in force.

Subsequently, after the pleadings were closed, and after a hearing in the superior court upon the entry of a final decree, the case was certified to this court under section 35, c. 289, Gen. Laws of R. I., upon an agreed statement of facts.

From the facts, as stated, it appears that on or before September 28, 1910, Julia M. Vaill, now deceased, executed and delivered to the respondent the mortgage under consideration, covering personal property then owned by Miss Vaill and located in New Shoreham, R. I. The respondent never took possession of the mortgaged chattels, nor did he have the said mortgage recorded within five days from the date of the signing thereof, but the same was placed on record in New Shoreham on October 26, 1910. Later, on July 18, 1911, Miss Vaill, by a bill of sale, sold and conveyed the chattels described in the said mortgage to the complainant, who thereupon took, and has since retained, possession of the same.

The complainant at the time when she purchased the property-July 18, 1911-knew of the existence of the said mortgage to the respondent, and that the same then appeared of record. The indebtedness for which the said mortgage was given has not been paid, the interest thereon is in default, and therefore the respondent claims the right to take possession of and sell the property covered by said mortgage under the provisions thereof. The respondent also claims that the mortgage is valid as to the complainant because the complainant knew of its existence and record prior to her alleged purchase of the property which the mortgage describes. On the other hand, the complainant claims that said mortgage has no validity whatever; it not having been recorded within five days from the date of the signing thereof as required by section 10, c. 258, of the .Gen. Laws of 1909.

The case presents but a single issue, and that is whether or not a mortgagee, who has neither taken possession of the mortgaged property nor recorded his mortgage within the time required by statute, can still maintain his mortgage as against the mortgagor's vendee who purchases the property with full knowledge of the existence of the mortgage.

The statute which fixes the time within which

The respondent claims that, notwithstanding the specific terms of the statute, the recording of a personal property mortgage after the expiration of more than five days from the date of the signing thereof acts as a constructive notice to those who may take a conveyance subsequent to such recording, and that as against them such a mortgage would be valid.

Our statute, before quoted, contains the imperative provision that no mortgage of personal property shall be valid until the mortgagee shall take possession of the mortgaged property or until he shall record his mortgage, and that such possession or recording shall take place within five days from the date upon which the mortgage is signed. As the court said in Haythorn v. Van Keuren & Son, 79 N. J. Law, 101, 74 Atl. 502:

"The presumption is that the word 'shall' in a statute is used in an imperative, and not in a directory, sense. If a different interpretation is sought, it must rest upon something in the character of the legislation or in the context which will justify a different meaning."

In thus making the record of the mortgage imperative within a specified time, the Legislature must have had some object in view, and must have intended that the failure to record should have some bearing and some effect on the validity of the instrument. It seems to me that the Legislature, in using the language which we find in the statute, intended that a mortgage which remained unrecorded for a period of five days should have no further legal existence, except as between the parties. The fixing of a definite period within which a mortgage must be recorded places the mortgage upon a different footing from mortgages made under statutes where no special time for recording is fixed. This difference has been recognized by this court in the case of Burdick v. Coates, 22 R. I. 410, 48 Atl. 389, in which the court, referring to the case of Commercial Bank v. Colton, 17 R. I. 226, 21 Atl. 349, used the following language:

"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 that an attachment made before the mortgage was held, in Drew v. Streeter, 137 Mass. 460, was recorded, even though the record was within the statutory period, took precedence of the

mortgage.

[ocr errors]

In the later case of Ziegler v. Thayer, 34 R. I. 288, 83 Atl. 266, the court said, in quoting from In re Ronk (D. C.) 111 Fed. 154:

"Sec. 10. No mortgage of personal property hereafter made shall be valid as to the assignee in insolvency of the mortgagor, or any other person except the parties thereto and their executors and administrators, until possession of the mortgaged property be delivered to and retained by the mortgagee, or the said mortgage be recorded in the records of mortgages or personal 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 sea or abroad, if the mortgagee shall take possession thereof as soon as may be after the arrival of the same in this state."

There are, however, some authorities which support the respondent's contention that recording, however long delayed, acts as con

« ՆախորդըՇարունակել »