Pettee v. Dustin

58 N.H. 309

Opinion

Allen, J.

The possession of the goods by the plaintiffs was on a distinct agreement with the mortgagors that they should be held until the plaintiffs’ claim was paid. There was no element of actual fraud in the transaction ; and the finding of the jury, that the change of possession was open and visible, rebutted the presumption of constructive fraud. liad the plaintiff's taken possession of the goods merely under and by virtue of their mortgage, the doctrine of Janvrin v. Fogg, 49 N. H. 340, 351, that possession under a fraudulent mortgage does not protect the possessor against a subsequent attachment of the mortgagor’s creditors, would be applicable to this case. But the plaintiffs having a pledge of the goods, accompanied by delivery and an open change of possession, and made by a distinct agreement subsequent to and independent of the mortgage, their right was superior to that acquired by a subsequent attachment of the mortgagors’ creditors, and the defendant’s claim cannot prevail.

Judgment on the verdict.

Stanley, J., did not sit.