Action of trover brought by the assignee in insolvency of one Lacroix, who was duly adjudged an insolvent upon the petition of his creditors filed May 31, 1898.
From the report of the testimony, upon which the case comes to the law court, these facts appear: On April 8, 1897, Lacroix was indebted to the Biddeford National Bank in the sum of $4000, as *81security for which amount the bank held a chattel mortgage upon his stock of goods, which mortgage had been fully foreclosed prior to that day. The value of this stock of goods at that time is somewhat in doubt, but it wfts unquestionably worth considerably more than the amount of the indebtedness. The defendant testified that the stock was worth at the time between $6000 and $7000. There had been some understanding, more or less definite, between Lacroix and the officers of the bank that he might redeem from the mortgage, notwithstanding its foreclosure, upon paying the amount due to the bank, and upon that day he went to the bank for the purpose of carrying this arrangement into effect.
Upon the same day, but whether before or after Lacroix’s arrival is in doubt, the bank transferred by a bill of sale all of its right and interest in the stock of goods to the defendant, who is the father-in-law of Lacroix and the president of the bank. In payment to the bank for this transfer of its interest in the stock of goods, the defendant gave the bank a check, drawn upon it, for the amount of the indebtedness, $4000, although in fact he had no considerable balance to his credit at the time and relied upon the sum that he was to receive from Lacroix to meet his check. The check was not charged to his account until after the check from Lacroix for a like amount had been placed to his credit.
Upon the same day the defendant gave a bill of sale of the stock of goods to Lacroix, which purported to be for a consideration of $10,500, of which amount $4000 was actually paid in cash at the time and a mortgage given back by Lacroix to the defendant to secure the sum of $6500. Prior to this transaction Lacroix was indebted to the defendant for two sums of money, sometime before loaned by the latter to him, of $5000 and $1500, respectively, the aggregate of which is the precise amount for which the mortgage to defendant was given.
So that by this transaction the defendant, without expending, or even using temporarily a dollar of his own money, obtained an apparent title to a stock of goods worth, as he says, between $6000 and $7000, sold it on the same day to his son-in-law for a cash payment exactly equal to the amount that he had paid in the man*82ner above described, and received in addition thereto a mortgage of the stock to secure the sum of $6500, a sum exactly equal to the amount of the two former loans made by him to his son-in-law.
The mere statement of the foregoing facts, about which there is no controversy, shows conclusively that the sole object of the entire transaction was that the defendant might obtain some security for the amount previously loaned by him to his son-in-law, and that the transaction might have the effect of showing a then present consideration for the mortgage.
It can not be believed that the bank, after making an arrangement more or less definite with Lacroix that he might redeem from the mortgage by paying the amount due, would have transferred its interest in the stock of goods, worth several thousand dollars moie than the indebtedness, for the amount of the indebtedness, to its president, the father-in-law of the mortgagor; or that the president would have taken the same, except for the benefit of the mortgagor and for the further purpose of giving to the defendant an opportunity to obtain security for his former loans in this way. In fact, the defendant admits this to have been the purpose and effect of the transaction when he says in his testimony: “That (the $6500 note and mortgage) wiped out all of his indebtedness to me.”
This mortgage is relied upon by the defendant for the purpose of proving his title to the stock of goods which he subsequently, but before the commencement of this action, took possession of, and after foreclosing the mortgage, sold. The mortgage, and its foreclosure, would have undoubtedly given him title to the chattels covered thereby, except for the further fact that it was not recorded until May 17th, 1898, only eleven days before the commencement of the insolvency proceedings.
But the mortgage was given, as we have seen, and as the case clearly shows, “to secure a debt to a prior existing creditor.” It had not been recorded three months prior to the commencement of the insolvency proceedings. Consequently, by IL S., c. 70, § 88, the assignment from the judge of the court of insolvency to the assignee in insolvency vested in him the title to the stock of goods *83covered by tbis mortgage, and claimed by tbe defendant under this mortgage, given by the insolvent to him to secure a prior existing indebtedness.
The only remaining question is as to the amount of damages. The measure of damages is the value of the property at the time of the conversion, with interest thereon from the time when the cause of action accrued. There is more or less controversy as to the value of the stock of goods at the time of the defendant’s conversion. But we think that the best and most satisfactory evidence upon this question of value comes from the actual sale of the goods, as the defendant evidently endeavored to obtain as much as possible therefrom. The amount actually received by him from the sale was $6579.58, from which should be deducted the expenses of the sale and the expenditures made by him for new goods bought for the purpose of continuing the sale at retail. These amounts aggregate $2158.97, and leave $4420.61 as the net value of ,the stock at the time of the conversion, to which should be added interest from the date of the demand and refusal, August 1, 1898.
Judgment for plaintiff for ■¡¡¡1/.//20.61 and interest from August 1, 1898.