The opinion, concurred in by a majority of the Court, was drawn up by
Tenney, C. J.This action is trover for the value of certain timber alleged to have been converted by the defendant. The plaintiff’s title is derived from one Larry, who contracted with Heald & Co., in writing, on Nov. 24,1849, to cut and haul the timber from a tract of land in the contract described ; the said Larry to retain a lien upon the timber cut and hauled for certain charges thereon. The said Heald & Co. cut and hauled a large quantity of timber under this contract, before and after the 16th day of February, 1850. Larry gave a bill of sale of this timber to Parker Sheldon, on Oct. 10, 1850; and Parker Sheldon gave a bill of sale of the same to Parker C. Sheldon, on June 6, 1851. Parker C. Sheldon died, and Ms estate is now represented by the plaintiff. The logs in controversy are a part of those cut under the contract between Larry and Heald & Co., which is dated Nov. 24, 1849.
The defendant claims title from White and Norris, who took from Larry a mortgage dated April 6, 1850, but not recorded ; and Heald & Co. gave a mortgage to White and Norris, without date, but recorded Feb. 16, 1850.
I. A question in the case was, whether White and Norris acquired any rights under the mortgage from Heald & Co., to logs cut subsequent to the record thereof. The Judge instructed the jury that an interest did pas§ under that mortgage, to that part of the logs in question.
On this question, the Court was so divided in opinion, that a majority of its members were not in favor of sustaining or overruling the exceptions, consequently, this instruction of the presiding Justice cannot be treated as erroneous; and the exceptions are not sustained thereon.
2. There was evidence tending to show that Parker Shel*586don had actual knowledge of the mortgage from Larry to White and Norris, of April 6, 1850, before the sale to him of Oct. 10, 1850. Upon this point the jury were instructed that, though White and Norris abandoned possession of the logs, or never took delivery thereof, yet the mortgage was valid as to Parker Sheldon, if they should be satisfied that he had actual knowledge of the mortgage. This, we think, was erroneous. It is true, that the law touching the recording of mortgages of personal property is', substantially the same as that which required’that deeds of real estate, to be effectual, except in certain specified cases, should be recorded. And it was held that actual or implied knowledge of a subsequent purchaser, whose deed was recorded earlier than that of a former purchaser from the same grantor, should not prevent the operation of the deed first given; and this, upon the ground, that the second purchaser was guilty of a fraud upon the first. The statute upon the subject of conveyances of real estat.e was revised in 1840, and, in the matter referred to, an essential change was introduced, that actual knowledge only could defeat the effect of a deed given of real estate, and recorded prior to another deed of the same, from the same grantor, given anterior to the one under which he’ claimed.
In the R. S. of 1841, c. 125, § 32, it is provided that no ^mortgage of personal property" made since April 24, 1839, ' or that shall be hereafter made, &c., shall be valid against any others than the parties thereto, unless possession of the mortgaged property be delivered to, and retained by the mortgagee ; or, unless .the mortgage has been, or shall be recorded by the clerk of the town where the mortgager resides. This provision is imperative in its terms, and, if it was really designed that it should have a construction, even more enlarged than that in reference to the recording of deeds of real estate, it is very remarkable that such unequivocal language should be employed touching the record of one and not of the other.
The requirement contained in the statute referred to had its origin in this State April 24, 1839, and we are not aware *587that the Court had been called upon to give, and did give a construction in the particular now under consideration, to the statute of that year, before the revised statutes of 1841 went into operation. And, inasmuch as the statutes were generally revised at that time, and that in relation to the recording of deeds of real estate underwent the alteration just mentioned, no construction of this Court has been adopted in any respect by the Legislature.
The instruction, that no title passed from Larry to Sheldon, if the transaction was fraudulent, would have been correct if the title of the fraudulent vendor is contested by an attaching creditor, or a subsequent purchaser of the vendor. If the mortgage of Larry to White and Norris was effectual in any mode, before the sale to Sheldon, it superseded the latter. If otherwise, the sale to Sheldon was the only operative transfer. As between the parties to a sale mutually designed to defraud creditors who attach, or subsequent purchasers, it is valid. Dagget v. Adams, 1 Greenl., 198, overruled by Andrews v. Marshall, 43 Maine, 272.
It is made a question, whether Larry had not abandoned his title to the logs, reserved by the contract of Nov. 24,1849, and the. Judge instructed the jury, that his taking the bill of sale of March 10, 1850, might tend to prove that fact. In this remark, no rule of law was given, but it was simply left to the jury from the evidence of that fact, which does not, seem to have been objected to, to draw their own inferences. It was for them to determine, whether or not he wished to fortify his title, then existing, or whether it was from a wish to claim entirely by a different one. We think this instruction not erroneous.
The instruction given to the jury, in relation to the evidence in another trial, as compared with that in this case, was given under a misapprehension of the mode in which the former case was disposed of, and was withdrawn. The plaintiff was not aggrieved in this. Exceptions sustained.
Appleton, Cutting, Davis and Kent, JJ., concurred. Bice, May and Goodenow, JJ., non-concurred.Note by Davis, J. — I concur -with. Judge Rice, in the opinion that the right to cut timber under a permit may be sufficient to uphold a mortgage of it before it is cut.
But I am not satisfied with his reasoning on the effect of notice of an unrecorded mortgage. The considerations presented were proper fot the Legislature. But in the face of the absolute statute provision, that no unrecorded mortgage “ shall he valid,” I cannot see how the mortgagee can have any rights under such a mortgage, against any one but the mortgager. On this point, I am constrained, though reluctantly, to concur with Chief Justice Tenney. “ The statute having made no exception, we can make none.” 9 How. TJ. S., 522.