The property which is the subject-matter of this suit was attached as the property of Putnam in several suits by the present plaintiff. The defendants were receiptors, and, not having delivered the property to the officer when demanded, this action is brought against them to recover the value of the attached property. Their defence is put upon the ground, substantially, that the property was by them delivered to persons having a paramount title. They say that the property attached was held, a part of it by Levi Keese by virtue of a mortgage, and a part of it by Levi Keese, the defendant Tripp, and one Conant, by virtue of a mortgage. These mortgages were not sworn to nor recorded, but the mortgagees had possession of the property, and the claim is, that under the statute these mortgages, though not sworn to nor recorded, were yet valid against attaching creditors, notwithstanding the statute, by reason of that possession.
It is well settled, that a receiptor may defend himself against his receipt by showing that the property has gone into the hands of the true owner; and it is equally well settled, that the party claiming the property, from whose possession it is taken by attachment, is not estopped by his receipt from showing that he was the owner of the property.
We are then brought at once to the question as to the validity of the mortgage under the circumstances.
We had occasion, in the case of Tucker v. Tilton, 55 N.H. 223, to notice the distinction between the effect of the statute of Elizabeth making void conveyances made to defraud creditors, and the effect of our statute making void mortgages not executed with certain required formalities against all but the parties and their executors and administrators. It is not contended in the present case that there is any dishonesty *Page 332 about these mortgages, or that they would be invalid against creditors under the statute of Elizabeth. But it is said that all question of honesty or dishonesty is out of the case; and the only point is whether, by virtue of our statute, the mortgages, by reason of the absence of certain formalities, are rendered void.
It is not questioned that if this property had been put into the hands of these mortgagees by way of pledge and not by way of mortgage, the transaction would have been good without any affidavit or record. There is no reason which can be assigned why a pledge of property placed in the possession of the pledgee should be valid, while a mortgage of the same property in the possession of the mortgagee should be invalid. One of those forms is no more liable to suspicion and furnishes no more facility for fraud than the other, and there would be practically as much reason for requiring an affidavit of the honesty of every absolute sale and every pledge, as of a mortgage where the property was in possession of the mortgagee.
This matter of a change of possession has always been, in our law, the grand criterion of the validity of conveyances against creditors. But, while we have held most rigorously to the rule that the possession of personal property by the vendor is evidence of fraud, our law has thrown no doubt over the validity of those conveyances where there is a change of possession.
I believe the first legislation in this state was the act of June 22, 1832, entitled "An act to prevent fraud in the transfer of personal property by mortgage." It provides "that no mortgage of personal property hereafter made shall be valid against any other person than the parties thereto, unless possession of the mortgaged property be delivered to and retained by the mortgagee, or unless the said mortgage be recorded in the office of the clerk of the town where the mortgagee shall reside at the time of making the same."
The next statute on the subject was approved December 17, 1840, and is found in the Laws of 1840, p. 291. It provides "that no mortgage of personal property liable to attachment and execution hereafter, executed, shall be valid except as between the parties thereto, unless the said parties shall severally take and subscribe the following oath or affirmation" — giving nearly the same form of oath as now in use. It will be noticed that this statute says nothing about possession by mortgagees but makes all mortgages of personal property invalid unless sworn.
It will be noticed that by the statute of 1840 there is no provision for the repeal of the statute of 1832, or any part of it. The statute of 1832 and that of 1840 stand together upon the statute-book, and must be construed together; and it seems to me that the true construction of those statutes, taken together, would make the statute of 1840 apply solely to those mortgages where the possession was not shifted. This would leave the whole harmonious and consistent, and also consistent with the provision in the Revised Statutes next to be mentioned.
Then came the Revised Statutes of 1842. By chapter 133 it is provided as follows: *Page 333
"Sec. 2. Possession of the mortgaged property must be delivered to and retained by the mortgagee, or the mortgage must be recorded in the office of the clerk of the town in which the mortgagor resides at the time of making the same.
"Sec. 3. Each mortgagor and mortgagee shall make and subscribe an affidavit, in substance, as follows:
* * * * * * * * *
"Sec. 7. 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."
It is impossible not to see that by this change in the statute it was intended to restore the old principle of the law that all affidavit should not be required when the mortgagee had possession of the property. If this had not been the intention, I think that section would have been made to affect pledgees as well as mortgagees.
But it was always understood that taking and keeping possession by the vendee, mortgagee, or pledgee, did away with most of the inducements to fraud, and of course relieved the transaction from suspicion. The provisions of the General Statutes are in the same terms and to the same effect.
In Janvrin v. Fogg it is said, — "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 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 mortgagor."
A careful examination of all our legislation on this point has not enabled me to reach the conclusion above stated. The statute cannot be so construed without erasing the most material part of the section, and so far is the affidavit from being an essential part of the mortgage, that it is substantially said, by BARTLETT, J., in Doolittle v. Lyman, 44 N.H. 608, that, so far as this statute is concerned, it is of no consequence whether the affidavit is true or not. He holds that this affidavit is a necessary part of the execution of a mortgage, and that, by the statute of Elizabeth, the affidavit must be true in order to make the mortgage valid against creditors; but as that statute is only for the protection of creditors, the mortgage under our statute will be good against subsequent purchasers, whether the affidavit is true or not. The parties to the mortgage may expose themselves to indictments for perjury, but under that statute the mortgage will be good enough if sworn to.
It seems to me, therefore, that when the mortgagee retains possession of the mortgaged property, the mortgage is good without either record or affidavit, and, the evidence of possession having been excluded, the verdict must be set aside.
LADD, J., concurred.
Exceptions sustained. *Page 334