Bellows Falls times. [volume] (Bellows Falls, Vt.) 1856-1965, 1898-09-17

lumber cut from all three lots. The claim
as to the $25OO mortgage is that on that
date Fred M. Waite made arrangements to
get $2500 of S. N. Herrick. and note was
given Herrick signed by Waite and Sher-
man, with the understanding, as the plain
till claims, that Sherman was to be the
principal on the note and to pay it; and ,as
the plaintiff claims, on the same day Waite
executed mortgage to him directly to Sc
cure note of like amount from Waite to
Sherman, which Waite agreed TO pay to
Sherman in consideration of Shermar's as
sumng the note to Herrick. The case was
first tried in county court March term,
1895, Judge Rowell presiding, and the
court then held the $25O0 mortgage abso-
lutely void and directed verdict for the
defendant. The plaintiff excepted, and
the csse wa. heard in supreme court, May
tern, 1895, and the Judgment Of the coun-
ty court reversed and the cause remanded.
September term, 1896, the case was again
tried at county court before Judge Start
and jury, the trial then taking q week.
Judge Start held the mortgage to be
good and the result OF that trial was ver-
dict for $2400 for the plaintiff. To the
rulings of the court the defendant except
ed. The case was heard in supreme court
January term, 1897 and the supreme court
held that the affidavit in the mortgage was
invalid, as it was the Vermont form instead
of the New Hampshire form, and the words,
land this debt was not created tor the
purpose of giving this mortgage" do not
appear in the Vermont form, while they do
in the New Hampshire form. The mort
~ p uro drou q av,k
blank. The court thereupon held the mort
gage as statutory mortgage invalid, and
remanded the case. The plaintiff claims
that while as statutory mortgage it is in
valid the mortgage is of force as between
Waite and Sherman, and good against all
parties having actual notice thereof, and
good as to a portion OF the property mort
gagged taken possession of by Mr.. Sherman.
The trial has so far been productive of
many legal wrangles. The plaintiff first
offered the transcript OF the testimony of S.
H Sherman given at the last trial, Mr..
Sherman having died last March. The de-
PENDANTS objected to this, the court over
ruled the objection, and the testimony of
Mr.. Sherman was read. That testimony
makes the claim substantially as above set
forth as to the giving of the note land Sher-
man further testiies that on about the frs
of June, 1892, he gave actual verbal not
tice to the Estey Organ company of this
mortgage; and again on November 25,
1892, he gave written notice to them of the
mortgage; that ABOUT December Is, 1892,
he took possession of $4,000 or $4,000
worth of the property, and thereafter the
Estey Organ company, without leave or
right, took the property covered by the
mortgage,
Arthur L. Maynard and c. F. R. Jenne
both testified in substantial corroboration
of Mr.. Sherman as to the arrangement
between Waite and Sherman at the time
the mortgage was given. The plaintiff in
troduced Judge John T. Abbott OF Keene,
as an expert of New Hampshire law, Judge
Abbott being prominent lawyer of many
years. practice. He testified that under
the law Of New Hampshire chattel mort
gage with defective affidavit was good as
against parties having actual notice there
Of; further, that mortgage, having de-
fective mortgage, had a right to take pos
session of the property as against the mort
gagor any time, and that being SO in pos
session, bis possession made his claim alb
solutely good against third parties. The
defendants claiming under bill OF sale of
July 5, 1892, Judge Abbott further testi-
fed, upon being inquired upon the state
ment Of ia is as expected to be developed,
that if this mortgage were given as claimed
by plaintiff with defective affidavit, sub
s. quent thereto bill of sale was given by
Waite to defendant Of the same property,
defendant not taking posses ion, subse-
quent to said bill of sale, the plaintiff gave
! actual notice to defendant Of his mortgage,
that thereupon after such notice the rights
Of the plaintiff to the property would be
param cunt to those of the defendant. The
| cross exam" alton of Judge Abbott was
le- gthy but fai ed to weaken in any way the
pr positions of law first laid down by the
witness. The plaintiffs eide OF the case
was closed Thur sday forenoon. The testi-
mony for the defense at this writing, Friday
noon, is not completed. Thus far it tends
to show that July 5, 1892 the defendant
comp ny having advanced a large amount
/ of money to " ate to aid him in his lum-
| bering operations began to feel the need OF
some security and took from him a bill of
) sale covering large amount of wood and
timber including the same on which Sher-
man claimed to have the mortgage dated
/ March IA, 1892; that the defendant had
never received notice of the Sherman mort
gage and that TIE bill of sale was taken in
absolute good faith to cover an indebted
ness much larger than that thereby Sc
cured that in due time it took possession
of the property by posting numerous pla-
cards on same property that the same was
the property of the Estey Organ company,
and later had it drawn to the company 8
shops in Brattleboro; that the mortgage Of
S2500 to Mr.. Sherman was drawn up with
the expectation that he was to furnish the
money persona''y but when the money was
obtained from Mr.. Herrick it was not in
tended to have effect; that the noe OF
$4,000 was not signed by Waite till No
vember 25, 1892. several months after the
dat of the bill of sale and that Waite
signed this note hurredly not knowing the
particular purpose of it, and not intending
to give effect thereby to the mortgage
dated March IA, 1892 In general the testi-
mony of defense tended to show that both
mortgages from Waite to Sherman were in
valid a. against an innocent purchaser foI
/ value, even if valid as between the parties.
Bert Chellis, the Claremout. n. H., attor-
ney, was produced by the defense as an in
terpreter of New Hampshire law as re-
CARDS m crtgages, his conclus ons differing
considerably from those of Judge Abbott