Year: 1860

BIncO.


JOSEPH FALLON Us. HENRY ROBINSON andJ. S. WALKER,
ASsiqneeS.


Justice Robertson delivered the decision of the Court
as follows:


Henry Turton hotel-k ,eper at LahajRa was declar
ed bankrupt, of the 2Sth of April, 1859, the date
of the filing of the petition in bankruptcy Nine days
previous, the 18th of April, he mOrtgaged all his
property, consisting chiefly of the furniture of his
house. to Joseph FallOn, the plaintiff the pay
ment of promis ory note for S421 IS, in favor of
plaintiff, and also to the plaintiff for becoming
with TurtOn party to promisSory note for $500 80,
made to B. F. BOes, for debt due to BIN from Tur-
ton.


The defendants are the assignees of Henry Turton
and have got in their possession the goods and chattes
mOrgaged to the plaintiff by Turton above stated
and the plaintiff has brought this ectiOn of replevin
compel the defendants deliver said goods and chat
tells to him, under his mortga e.


Several points of considerable interest raised
by GSunse in the Of their argument, but it is
only necessary, think, to advet to of them.


1t is cOntended the part of the defendants, that
even admitting the mortgage to be valid, the plaintiff
entitled, either law in equity, to the pos
session Of the mortgaged chattes, the 9th of OctO
Der last when he commenced this suit because de-
fault had then ben made in the payment Of plain
tiff debt, which due until the 18th of NOvem
ber and the mortgage contains stipulation permitting
TurtOn retain possession of and the mOrtgaged
chattes until such default shall be made.
The mortgage if it is valid, and was duly recorded





the title in the chattes mortgaged, upon condition, and
would have become absolute interest at law upon
the failure of Turton to pay the debt secured by the
mortgage when it fell due. The mortgage passed the
property to EaOn, subject to the condition, without
actual delivery and he entitled to the Immediate
possession at any me but for the stipulation by which
he agreed that TurtOn should retain possession until
default


1t cannot of cour e, be contended that, under no
circumstances whatever could the mortgage take pos
Of baf1 in
the payment of the debt for there various events
upon the happening Of which, the mortgage might
claim possession. In the case of Hardy Ruggles


ais, decided in this court in the year 1886, 1t was
held that the mortgage had right to proceed at once


for possession because the mortgagOrs had attempted
to transfer the whole Of their stock in trade to other
creditors, the same being mOrtgaged t. the painti
although the mortgage contained stipulation permit
ting the mortgagOrs to retain possession until default,
with the right to sell in the usual course or trade
In the case of Russell Butterfeld II WendelIs
Rep, D. 800 the mortgage contained stipulation that
the property should remain in the possession OF the
mOrtgagor, but in Of default in payment. or IN
case of any attempt to remove dispose of the prop
erty the part of the mortgagor the mortgage to
have right to seize it, wherever it might be- and to
s2 and convert the same into money and appropriate
the proc sds to the payment of debt, paying over
the surplus if any, to re mOrtgagor 1t was held IN
that that upon the removal of the property into
another county, by the mortga the mortgage might
maintain an .tion of repevn although the time OF
payment of the mort age moneys had not yet arrived
In the se of Welch Whittemnre, % Maine Rep,
&c. the mortgage stipulated that the mortgagor should
retain pos sOn of the property until default with the
condition, (Which is also contained in the mortgage
before us that if the property should be attach
ed at any time before payment, by any other creditor
of the mort yagOr then it should be lawful for the
mOrtgagee to take immediate possession OF the prop
erty II was held in that case, that the mortgage
might maintain tresps against Ofhcer for attaching
and carrying away such NOR aged property, IN SUIT
against the mOrtgagOr


In the ca of i3allune U.s. Wallace, cited in Q. s.
Dig t. Vol T. p. 372 Sec. los, the Court held that,
g stipulation in mortgage of personal property that
the mortgagOr shall remain in possession until the
breach of the condition, is personal to the morgagor
and mot be igned or transferred The mortgagee
is not therefore precud brin yng trover for the
property before breach of the condition. against pur-
cha. er from the mOrtgagor.


The doctrine of tn ; ca.es seems to reasonable,
and is applicable think, to the use before u.s. Iur-
ton declared bankrupt, and his property and at
fairs passed. pursuant to the statute into the hands o1
gnec But the only interest in the chlttels mort
gagged to Fallon, which pa d to the assgnees OF Iur-
ton, the right to redeem them by paying OH fa!.
Ions claim or receive the balance OF proceeds,
any remained for the benefit of creditors upon sale
of the chattes and payment of that claim We think,
therefore, that upon Turton being declared bankrupt
Faon had right to take immediate possession OF the
mortgaged property if his mortgage was valid
The most important question in the case, and one



the mortgage which contested the part of the de-
fendants.


Section first, of " An Act relating to Bankruptcy"
passed n the year 1848 under which proceedings were
had in this case provides, That every person owing
debts to the amount of two thousand dollars who shall
refuse or fail to make payment of any OF his just de-
mands for ten days after the shall have matured,
and been presented for payment to him or to his agent
or who shall depart the Kingdom with the intent to
defraud delay his creditors or secrete himself, or
keep his house avoid his creditors or the service OF
legal process for the Collection of any debts or make
any fraudulent conveyance of his property to friend
cret trustee. make any secret removal or other
disposition of his property for the purpose OF delaying
or deraudng any CREDITOR may, upon petition to the
Chief Justice of the Superior Supreme) Court by any
creditor to the amount OF five hundred doiars,r
by any two or more creditors, the of whose debts
shall amount thousand dollars, be declared bank
rupt''


Section nineteenth of the same Act provides, that


The nkrupt shall be dvested of all title and inter-
in his property from the day of his failure exeePt
the nece ary clothing of him-elf and family and such
other nece res not to exceed the value of three hun
dred dollars the commi Foners may deslgnate) and
every asignment conveyance transfer OF his prop
erty by him after ne shall have become insolvent or
committed act of bankruptcy, except upon gOod
con deratiOn to a lara tide purchaser haTing no no
tice of such in-ovency bankruptcy shall be VOID,
and the property so transferred may be recovered and


spo ID of by the assgnees for the benefit OF the cred
itors.''


1t is con.ended by counsel for the defendants, that
under fair construction Of the statute and on the


c of the case as they appear in evidence, the mort
gage to plaintiff must be declared void, as against the
creditors Turton known TO the planth to
be ineolvent the time the mortgage was made, and
had in fact committed acts of bankruptcy.


1t is argued the part of the plaintiff, that there
can be no t1ilae by debtor, within the meaning OF
the statute until he has been declared bankrupt and
that the words bankrupt and sOIUenf, as used IN the
nineteenth section Of the Act, Synonymous terms
This we think, is not the proper construction And
when the question asked. what failure within the
meaning Of the satute it may be answered 50 as 70
meet the present case by quoting the opening sentence
of the first section of the Act of 1848 Whenever any
person owing debts to the amount Of two thousand dol
lars shall refuse or fail make payment of his just
demands for ten days after the shall have matur-