FROM HILLSBOROUGH CIRCUIT COURT. Certain evidence was offered by the defendants and excluded by the court. But the facts offered must, for the purposes of this case, be considered as proved.
The fact, that the chattels attached were found in the possession of the mortgagees at the time of the attachment, was of itself sufficient notice to the attaching creditors that should have put them upon inquiry to ascertain whether they held it by some title inconsistent with an unincumbered title in the mortgagor. Possession of chattels is presumptive evidence of ownership.
The mortgages to the defendants were defective in two particulars: (1) the affidavit required by sec. 6, ch. 123, Gen. Stats, was lacking, and (2) they had never been recorded. By section 2, the mortgagee is required to retain possession of the mortgaged property, unless the mortgage is duly recorded; and by section 6, the mortgagor and mortgagee are required to make and subscribe an affidavit as to the justness of the debt secured. When the mortgage is given to secure a liability (section 9), the affidavit is to be varied accordingly. Section 12 is in these words: "No such mortgage shall be valid against any person except the mortgagor, his executors and administrators, unless possession is delivered, or the mortgage is sworn to and recorded in the manner herein prescribed."
In Gooding v. Riley, 50 N.H. 400, a mortgage of personal chattels, without the affidavit required by law, was held valid against a subsequent mortgagee having notice that the prior mortgage was made in good faith and for a full consideration. In the able discussion in that case by BELLOWS, C. J., he says "that the statute requisites are equally imperative in the cases of mortgages of real and of personal property; and the provisions, making the conveyances void as to all persons *Page 330 but the grantor and his representatives in case of a failure to comply with the statute requisitions, are equally explicit in the two cases.
"Between the two cases there is this distinction. In respect to real estate, the object of the registry laws to provide for notice of all conveyances, to protect purchasers and others against secret conveyances; while in the case of mortgages of personal property, the object of requiring the affidavit is to guard against the making of fraudulent or fictitious mortgages to enable the mortgagor to retain the possession of the property and set his creditors at defiance.
"Where the object of the statute is notice simply through the registry, there would be much force in the suggestion that actual personal notice ought to be equivalent to the record; and it has been held that the purpose of the statute was to protect subsequent purchasers and creditors without notice. Montgomery v. Dorion, 6 N.H. 256.
"The verification of the truth and good faith of a mortgage of personal property stands upon a ground somewhat different; and yet it may be said to be designed to protect persons, who have occasion to deal with the mortgagor respecting that property, from false and fictitious incumbrances, and, in the absence of any change of possession, to furnish some evidence that the mortgage was made in good faith. To some extent the change of possession affords such evidence, and the affidavit and record were designed to take the place of it when possession could not conveniently be given."
This case was decided in December, 1870, and, as will be observed, Judge BELLOWS attached great importance to the fact that the affidavit required by the statute was intended to afford those who may deal with the mortgagor some protection from fictitious incumbrances in the absence of any change of possession. He could not then have forgotten the case of Janvrin v. Fogg, 49 N.H. 340, decided in June, 1870, only six months before the decision in Gooding v. Riley. One of the head notes in Janvrin v. Fogg is as follows: "Possession by the mortgagee of personal property mortgaged answers instead of the record of the mortgage. But whether the mortgage be recorded, or possession of the property be taken under it, the affidavit required by statute must be taken and subscribed by both parties thereto."
The only allusion to this point in the lengthy opinion of the court is in these words: "Upon an examination of the several provisions of the statutes, we are satisfied that possession of the mortgaged property will only supply the place of the record of the mortgage; and that the affidavit is required in the one case as well as in the other. The affidavit is made an essential part of the mortgage itself, without which the mortgage is void as to every person but the mortgager" — p. 353.
The consideration of this point was not necessary to the decision of the questions raised in that case. It can be regarded then only as a statement coming from the learned judge who delivered the opinion of the court, and, as such, entitled to the highest respect; but nevertheless it cannot be regarded in the light of an authority.
The history of legislation on this subject is decisive of this question. *Page 331 Prior to June session, 1832, neither a record nor possession by the mortgagee was essential to the validity of a mortgage. In that year an act was passed which provided that the mortgagee should take possession of the mortgaged property, or cause the mortgage to be duly recorded. It was not till December, 1840, that a statute was passed requiring the parties to annex an affidavit as to the justness of the claim secured thereby. There has been no substantial change in those provisions to this day. The twelfth section does not indeed declare in terms that a mortgage shall be valid when possession is delivered, although the mortgage is neither sworn to nor recorded; but, "expressio unius, exclusio alterius" applies. "No such mortgage shall be valid * * unless possession is delivered or the mortgage is sworn to and recorded" means, that when possession is delivered the mortgage shall be deemed valid, although it is neither sworn to nor recorded.
A pledge accompanied by possession is good. There is no reason why the same principle should not be applied to a chattel mortgage, unless it be that the statute prevents it, which, it seems to me, it does not do. I am therefore of opinion that where possession is delivered to the mortgagee, a chattel mortgage, although not sworn to nor recorded, is valid. For these reasons there must be a new trial.