The plaintiff acquired title to the schooner Belcher, replevied, by purchase of Joshua Pettygrove, as by bill of sale of July 16, 1855, and had possession of her.
The defendant pleads that he was justified in taking the schooner, as the servant of Zachariah Chipman, in whom, he alleges, the right of possession was, by virtue of a mortgage, from Pettygrove to him, of November 29, 1854; and, also, as a deputy sheriff, by virtue of two writs of attachment, against Pettygrove, in favor of said Chipman, and Chipman and als., to secure whose lien claims, he avers, he attached the schooner.
The mortgage conveyed to Chipman, “all and singular the *131shipbuilding materials now in my shipyard, in Calais, consisting of timber of various descriptions, and iron and tools of various kinds.”
This mortgage was dated November 29, 1854; but, by the facts agreed, it appears, that it was recorded in the registry of mortgages, in Calais, as a mortgage dated March 29, 1854. The record, therefore, was notice to the plaintiff of a mortgage of materials, &c., in the shipyard, March 29, 1854; and although it appears to have been so recorded, by mistake, yet if the mortgage, being properly recorded, would have been valid to defeat or encumber the plaintiff’s title, the mistake was fatal, as affecting its validity for that purpose. R. S., c. 125, § 32.
The precepts, under which the defendant claims that he was justified, were against Pettygrove, and commanded the officer (the defendant,) only “to attach the goods or estate of Joshua Pettygrove.”
There was no claim, in rent, set forth in the declaration, in either of them, against the schooner; nor did either of them command the officer to attach her, for on the 18th July, 1855, the date of the precepts, the schooner was not “ the goods or estate of Pettygrove;” he had, previously, sold and conveyed her to the plaintiff, who retained her under that sale and conveyance, until she was attached and taken from him by the defendant.
Hence the precepts, under which the defendant acted, gave himno authority to take the schooner from the plaintiff.
Defendant defaulted.
Tenney, C. J., and Appleton, May and Goodenow, J. J., concurred.