Dureee, C. J.
This is replevin for a stock of goods claimed by the plaintiff as mortgagee of one Maurice Walsb, under a mortgage made February 26,1880, but not recorded until April 12,1880. Tbe goods were taken from tbe defendant on tbe writ of replevin April 19,1880, tbe defendant then having them in bis possession under an assignment from Walsb, made March 19, 1880. One of the defences to tbe action is that tbe mortgage to tbe plaintiff is void, under Pub. Laws P. I. cap. 723, of June 20, 1878.
Section 4, of cap. 723, provides that “conveyances and payments made and securities given by an insolvent debtor, or by a debtor in contemplation of insolvency, within sixty days of tbe
commencement of proceedings against such debtor under this act, with tbe view of giving a preference to any creditor upon a preexisting debt, or to any person under liability for sucb debtor, over another creditor, shall be void as to all creditors receiving the same who shall have reasonable cause to believe that such debtor was insolvent at the time of such preference.” Another section provides that where, as here, the preference is by mortgage, the sixty days aforesaid shall not begin to run until the mortgage is recorded. The proceedings against the debtor, mentioned in section 4, are proceedings for the appointment of a receiver under section 2 of the chapter, and the defendant claims that such proceedings were commenced May 7,1880, being less than sixty days after the plaintiff’s mortgage was recorded, and that they resulted in the appointment of the defendant as receiver. We think the defence is open to the defendant, and that under proper pleadings it is competent for him to show that the plaintiff’s mortgage is void by showing that it was not recorded until less than sixty days before the commencement of the proceedings aforesaid, that it was made originally for the purpose of giving the plaintiff a preference on a preexisting debt, that the mortgagor was then insolvent, and that the plaintiff had reasonable cause to believe that he was insolvent. For the mortgage, if so given and received, though it might have ripened into validity if no proceedings had been commenced against the mortgagor, under section 8, within sixty days after it was recorded, was nevertheless tainted at its inception; and when, within sixty days after it was recorded, the proceedings were commenced, it instantly became void
ab initio
under the statute. It may be thought that the plaintiff had a right to replevy the goods, when he replevied them, the proceedings not having then been commenced, and that if he then had the right, it would not be defeated by the commencement of proceedings afterwards; but we do not think the position is tenable, because the court is bound, under the statute, to regard the mortgage as originally void whenever the proceedings are commenced, if commenced within sixty days, and we therefore think the defendant has a right to show the subsequent commencement of proceedings to invalidate the mortgage by relation, and think the plaintiff must be held to have begun his action subject to that risk. The plaintiff
contends that the defendant, as a mere voluntary assignee, has no right to impugn a mortgage given by his assignor before the assignment. We cannot assent to this view. The sta.tute makes a mortgage, which is violative of its provisions, not simply void or voidable as against creditors and
bond fide
purchasers, but generally void ; and, therefore, the defendant, whatever may be thought of his title by assignment, has a right to maintain his possession against the plaintiff by showing that the mortgage under which the plaintiff claims is void, the principle which might estop the mortgagor from showing it, because he could not show it without alleging his own fraud, being inapplicable to him. Indeed the introduction of any proof of the assignment by the defendant, under his plea of property, to the action of replevin, is entirely unnecessary, Ins title by possession being sufficient until the plaintiff can show a better title, and the plaintiff does not show a better title by producing a void mortgage, which is in law a mere nullity.
Cullum
v. Bevins, 6 Har. & J. 469, 471;
Marsh
v. Pier, 4 Rawle, 273, 283;
Quincy
v.
Hall, 1
Pick. 357, 360;
Whitwell
v.
Wells,
24 Pick. 25, 32;
Simcoke
v.
Frederick,
1 Ind. 54;
Halstead
v.
Cooper,
12 R. I. 500, and cases there cited.
The case at bar comes up from the Court of Common Pleas on exceptions. In the court below the defendant first pleaded three several pleas, to wit: 1. Property in himself and not in the plaintiff ; 2. Property in himself, specifically alleging his title as as-signee, and not in the plaintiff; and 3.
Non cepit.
Subsequently he pleaded a fourth plea, setting forth the proceedings for the appointment of a receiver and his appointment as such, and averring that by virtue thereof the property in suit vested in him. The plaintiff demurred to the first two and the fourth pleas, and joined issue to the jury on the plea of
non cepit.
The court below sustained the demurrer, to the fourth plea, rightly, we think, and overruled the demurrers to the first two pleas. The -plaintiff then replied to the first two pleas, and, instead of simply reaffirming property in himself and tendering issue thereon, as he ought to have done by the rules of good pleading, he reaffirmed his right, and reaffirmed it because of the mortgage, or under the mortgage, and thereupon the defendant rejoined denying the validity of the mortgage, setting forth the grounds of denial in his rejoinders.
The plaintiff demurred to the rejoinders, and the court below sustained the demurrers. Unless the rejoinders put in issue something more than the plaintiff’s right under the mortgage, and it does not appear that they were understood by either the court below or the parties to put anything more in issue, we think the court below erred in sustaining the demurrers. At this stage of the proceedings there was only one issue left for trial, namely: the issue to the jury under the plea of
non eepit.
The case was then tried to the jury, but the jury, instead of rendering a verdict under the plea of
non
eepit, rendered a verdict on the question of property, finding that the property and right to the goods were in the plaintiff. In fact the report of the trial, filed as a part of the bill of exceptions, shows that the question of property was the only question which was tried to the jury, though there was no issue to the jury on which it could be tried to them. The trial was therefore utterly abortive, and any exceptions taken in the course of it, like the trial itself, must go for nothing.
It is evident that, in this state of the record, the case would have to go back for a new trial, if it were only because the issue on the plea of
non eepit
still remains for decision. In this respect the case resembles
Boynton
v. Page, 13 Wend. 425, where there were issues to the jury on pleas of
non eepit
and property, and the jury found for the plaintiff, but only on the plea of
non eepit.
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Dureee, C. J.
This is replevin for a stock of goods claimed by the plaintiff as mortgagee of one Maurice Walsb, under a mortgage made February 26,1880, but not recorded until April 12,1880. Tbe goods were taken from tbe defendant on tbe writ of replevin April 19,1880, tbe defendant then having them in bis possession under an assignment from Walsb, made March 19, 1880. One of the defences to tbe action is that tbe mortgage to tbe plaintiff is void, under Pub. Laws P. I. cap. 723, of June 20, 1878.
Section 4, of cap. 723, provides that “conveyances and payments made and securities given by an insolvent debtor, or by a debtor in contemplation of insolvency, within sixty days of tbe
commencement of proceedings against such debtor under this act, with tbe view of giving a preference to any creditor upon a preexisting debt, or to any person under liability for sucb debtor, over another creditor, shall be void as to all creditors receiving the same who shall have reasonable cause to believe that such debtor was insolvent at the time of such preference.” Another section provides that where, as here, the preference is by mortgage, the sixty days aforesaid shall not begin to run until the mortgage is recorded. The proceedings against the debtor, mentioned in section 4, are proceedings for the appointment of a receiver under section 2 of the chapter, and the defendant claims that such proceedings were commenced May 7,1880, being less than sixty days after the plaintiff’s mortgage was recorded, and that they resulted in the appointment of the defendant as receiver. We think the defence is open to the defendant, and that under proper pleadings it is competent for him to show that the plaintiff’s mortgage is void by showing that it was not recorded until less than sixty days before the commencement of the proceedings aforesaid, that it was made originally for the purpose of giving the plaintiff a preference on a preexisting debt, that the mortgagor was then insolvent, and that the plaintiff had reasonable cause to believe that he was insolvent. For the mortgage, if so given and received, though it might have ripened into validity if no proceedings had been commenced against the mortgagor, under section 8, within sixty days after it was recorded, was nevertheless tainted at its inception; and when, within sixty days after it was recorded, the proceedings were commenced, it instantly became void
ab initio
under the statute. It may be thought that the plaintiff had a right to replevy the goods, when he replevied them, the proceedings not having then been commenced, and that if he then had the right, it would not be defeated by the commencement of proceedings afterwards; but we do not think the position is tenable, because the court is bound, under the statute, to regard the mortgage as originally void whenever the proceedings are commenced, if commenced within sixty days, and we therefore think the defendant has a right to show the subsequent commencement of proceedings to invalidate the mortgage by relation, and think the plaintiff must be held to have begun his action subject to that risk. The plaintiff
contends that the defendant, as a mere voluntary assignee, has no right to impugn a mortgage given by his assignor before the assignment. We cannot assent to this view. The sta.tute makes a mortgage, which is violative of its provisions, not simply void or voidable as against creditors and
bond fide
purchasers, but generally void ; and, therefore, the defendant, whatever may be thought of his title by assignment, has a right to maintain his possession against the plaintiff by showing that the mortgage under which the plaintiff claims is void, the principle which might estop the mortgagor from showing it, because he could not show it without alleging his own fraud, being inapplicable to him. Indeed the introduction of any proof of the assignment by the defendant, under his plea of property, to the action of replevin, is entirely unnecessary, Ins title by possession being sufficient until the plaintiff can show a better title, and the plaintiff does not show a better title by producing a void mortgage, which is in law a mere nullity.
Cullum
v. Bevins, 6 Har. & J. 469, 471;
Marsh
v. Pier, 4 Rawle, 273, 283;
Quincy
v.
Hall, 1
Pick. 357, 360;
Whitwell
v.
Wells,
24 Pick. 25, 32;
Simcoke
v.
Frederick,
1 Ind. 54;
Halstead
v.
Cooper,
12 R. I. 500, and cases there cited.
The case at bar comes up from the Court of Common Pleas on exceptions. In the court below the defendant first pleaded three several pleas, to wit: 1. Property in himself and not in the plaintiff ; 2. Property in himself, specifically alleging his title as as-signee, and not in the plaintiff; and 3.
Non cepit.
Subsequently he pleaded a fourth plea, setting forth the proceedings for the appointment of a receiver and his appointment as such, and averring that by virtue thereof the property in suit vested in him. The plaintiff demurred to the first two and the fourth pleas, and joined issue to the jury on the plea of
non cepit.
The court below sustained the demurrer, to the fourth plea, rightly, we think, and overruled the demurrers to the first two pleas. The -plaintiff then replied to the first two pleas, and, instead of simply reaffirming property in himself and tendering issue thereon, as he ought to have done by the rules of good pleading, he reaffirmed his right, and reaffirmed it because of the mortgage, or under the mortgage, and thereupon the defendant rejoined denying the validity of the mortgage, setting forth the grounds of denial in his rejoinders.
The plaintiff demurred to the rejoinders, and the court below sustained the demurrers. Unless the rejoinders put in issue something more than the plaintiff’s right under the mortgage, and it does not appear that they were understood by either the court below or the parties to put anything more in issue, we think the court below erred in sustaining the demurrers. At this stage of the proceedings there was only one issue left for trial, namely: the issue to the jury under the plea of
non eepit.
The case was then tried to the jury, but the jury, instead of rendering a verdict under the plea of
non
eepit, rendered a verdict on the question of property, finding that the property and right to the goods were in the plaintiff. In fact the report of the trial, filed as a part of the bill of exceptions, shows that the question of property was the only question which was tried to the jury, though there was no issue to the jury on which it could be tried to them. The trial was therefore utterly abortive, and any exceptions taken in the course of it, like the trial itself, must go for nothing.
It is evident that, in this state of the record, the case would have to go back for a new trial, if it were only because the issue on the plea of
non eepit
still remains for decision. In this respect the case resembles
Boynton
v. Page, 13 Wend. 425, where there were issues to the jury on pleas of
non eepit
and property, and the jury found for the plaintiff, but only on the plea of
non eepit.
There, after judgment against the defendant, on error, the judgment was reversed and the case remanded for a new trial, though the bill of exceptions attached to the record stated that all the issues were found for the plaintiff. See, also,
Bemus
v.
Beekman,
3 Wend. 667. We think, moreover, that the court below, as before intimated, erred in sustaining the demurrers to the defendant’s rejoinders. The rejoinders may have been defective in form or fulness, though it does not appear that the demurrers were sustained on that account. The court of course should, and doubtless would have allowed such defects to be removed by amendment, or, better still, should-'have complied with a motion, which the record shows was made by the defendant, to strike out the second plea of property, and the replication, rejoinder, and demurrer following thereon, and also to strike out the replication, rejoinder, and demurrer under the first plea of property, giving the plaintiff
leave, however, to reply anew in tbe usual form, reaffirming bis right of property and tendering issue to tbe jury thereon. Tbe second plea was the same as the first, except in its superfluous averments, and therefore might well be stricken out as tending to confusion. The plaintiff’s replications were faulty for argumentativeness and unnecessarily protracted the pleadings. The plaintiff, under the replication reasserting property in himself, can in our opinion prove property in himself in any form in which he has it which will entitle him to recover. Under the broad power given us by Pub. Stat. R. I. cap. 220, § 20, we shall do what we think the court below should have done, and order said second plea, replications, rejoinders, and demurrers stricken out in compliance with said motion, granting the plaintiff leave to reply anew to the first plea, and thereupon will send the case back to the Court of Common Pleas for a new trial.
Charles A. Wilson,
for plaintiff.
William II. Baker,
for defendant.
Order entered
July
7, 1883.
Ordered that the 'plaintiff's demurrer to the defendant's fourth plea, filed at the March Term of the Court of Common
Pleas, 1881,
and the judgment of said Court of Common Pleas sustaining said demurrer, are sustained. The defendant's second plea, and the replication, rejoinder, and demurrer filed under the same and thereto, and also the replication, rejoinder, and demurrer filed to and under the first plea, are stricken out: the plaintiff having leave to reply anew to said first plea. The cause is remanded for trial or new trial under said first plea, and also under the plea of
non cepit.