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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 363 The chattel mortgage under which the plaintiffs claimed title was not illegal on account of anything contained in it; and, having been filed according to the statute, it was capable of being sustained against the creditors of the mortgagor by proof sufficient to rebut the inference of fraud arising out of the retention of possession by him. So far as concerned the debt which it professed to secure, the proof of bona fides was satisfactory. The plaintiffs indorsed a note to enable Sutherland to raise money at a bank, to pay off a judgment against him upon which an execution had been issued; and the mortgage now in question was given to indemnify them for their indorsement. So far, the transaction was quite fair and honest. But if the debtor was permitted, not only to retain the possession of the property mortgaged, but to sell it out by retail, on his own account, as he had been doing before the mortgage, we think, with the judge who tried the case, that the arrangement would be fraudulent and the security void. But it would not have been inconsistent with the nature of the transaction, or with good faith, that the mortgagees, by themselves or their agent, should have been permitted to sell the goods by retail, for cash, and apply the money which they *Page 364 might bring towards the discharge of the debt which the mortgage was given to secure. This was what the plaintiffs professed to prove, only they made the mortgagor, instead of a third person, their agent. He, according to his own testimony and that of one of the plaintiffs, was to sell, in effect, as the agent of the mortgagees; for he was to sell only for cash, and was to apply the money towards paying the note. An arrangement in these terms might have been merely colorable, and a device to protect the property against the pursuit of other creditors. I would not advise a creditor to take a mortgage of such property, accompanied by such an agreement, for, in most cases, a jury would regard it with great suspicion, and would be apt to consider it a fraudulent contrivance; but such an arrangement may possibly be made without any improper views. Whether, in a given case, it was fair or fraudulent, would be a question of fact for the jury to determine. (2 R.S., p. 137, § 4.) It would be otherwise, if the question depended upon the effect of a written instrument, as we held in Edgell v. Hart (5 Seld., 213), or if it should arise upon an admitted or undisputed state of facts which showed an arrangement quite inconsistent with fairness and honesty, as where such an arrangement as that existing inEdgell v. Hart was made by parol outside of the mortgage; but where the transaction, though suspicious, is capable of a construction consistent with fairness and the absence of fraud, it must be passed upon by the jury. The charge in this case was in accordance with these views; and, if the defendant has failed to receive justice, it was not for the want of having the law correctly laid down by the judge.
I notice that the defendant insists that, where the mortgagor is suffered to retain the possession, the only points to be left to the jury are those relating to the consideration, and those adduced to explain the want of possession following the transfer. But, in my opinion, if there are any other circumstances of a suspicious nature attending the transfer, the explanation respecting such circumstances is to be addressed to the jury, unless they are of a character entirely inconsistent with *Page 365 the integrity of the transaction, and which no explanation either to the court or jury could make lawful. In that case, indeed, the court is to pronounce the law. But an agreement that the mortgagor may dispose of the goods for cash and bring the money to the mortgagee, the latter holding the title until such disposition shall be made, may, as has been said, possibly be sincere and without fraud. The law does not, therefore, condemn it absolutely, but submits the question of good faith to the jury.
The evidence on the present trial was very full to show the defendant to have directed the seizure and sale of the property; and the rules of law as to what kind of participation in a trespass will implicate a person in the wrong, were correctly laid down by the judge. But the defendant objects to the ruling in which it was stated, that the fact that the defendant refused to disclose on whose behalf he was acting, and told the plaintiffs to sue him, estopped the defendant from denying that he directed the sale of the property. I think the case does not raise such a question. As I understand it, the charge was that if the defendant, besides directing the sale and promising to indemnify the bidder, refused to name his principals and invited the plaintiff to sue him that he would be estopped from denying his complicity. The substantial correctness of such an instruction cannot be doubted. But if the charge were such as the objection assumes, I think it would be right. The defendant certainly issued the execution and attended and countenanced the sale. It might be that, conceding these facts, he was not a trespasser, and that the officer and the plaintiffs in the execution were the only parties implicated, as we held when the case was here before; yet if he acted officiously, and beyond the scope of his duty as an attorney, or if he directed the execution to be levied on this particular property without instructions for that purpose by his clients, he would be liable. The present plaintiffs, after the sale, required an explanation on that point, which, according to the testimony, he refused to give, taking the responsibility upon himself by inviting the plaintiffs to sue him. This, if the testimony were *Page 366 believed, would be a ratification on his part of the act of selling the property, which would render him subject to its consequences; and, in consequence of that declaration, if the plaintiff sued him instead of the other parties liable, he would be estopped from insisting upon a defence which, if allowed, would subject the plaintiffs to costs for acting on his invitation.
The remaining question is whether the deposition alleged to have been taken by virtue of a commission to Michigan was properly excluded. By the common law, the manner in which a court of record authenticated its process was by affixing its seal. It followed from that theory that a paper otherwise purporting to be a writ which lacked that evidence of its genuineness was a nullity. (The People v. McKay, 18 John., 212; Tracy v.Suydam, 30 Barb., 110.) Innovations have of late years been made upon this theory. The most important modification was that inserted in the judiciary act of 1847, where it is declared that no process, except such as should be issued by the special order of the court, should be deemed either void or voidable for the want of a seal when it should be signed by the attorney or party issuing it (p. 336, § 57). This case is within the exception, because commissions to take testimony in another State are issued only on motion, or where by stipulation a motion is waived. We have been referred to cases showing that process issued without a seal has been amended on motion. This is no doubt so, and it might be shown that the total failure of a necessary record or writ has been remedied by filing such a paper nunc pro tunc. But this practice does not touch the present case, where there had been no application to the court and no order in the matter.
It was no answer to the action that the plaintiffs became bidders upon portions of the property, after they had stated their rights and had forbidden the sale. It is no defence to an action of trover or trespass that the plaintiff has got back his property which the defendant wrongfully took or converted. In such cases the measure of damages is the sum paid to obtain the property. (Murray v. Burling, 10 John., 175; Baker v.Freeman, 9 Wend., 36.) *Page 367
It follows from what has been said that no error was committed by the court below, and that the judgment ought to be affirmed.
All the judges concurring,
Judgment affirmed.