Sawyer v. Parker

57 Me. 39

• Court: Supreme Judicial Court of Maine
• Decided: July 1, 1869
• Status: Published

Opinion

Dickerson, J.

The stamp put upon the mortgage before it was recorded was insufficient, but tbe requisite stamp was affixed to it by tbe collector of tbe revenue for tbe district, after it was recorded, and tbe attachment of tlie mortgaged-goods had been made. Act of congress of July 13, 1866, § 9.

We have decided that the act of congress of March 3,1865, c. 78, § 158, does not make an unstamped instrument which requires a stamp “ invalid and of no effect,” unless there is an “ intent to evade the provisions of the act; ” and that such intent must be made to appear affirmatively, or the instrument will be held valid. Dudley v. Wells, 55 Me. 145.

The language of the act amendatory of the act of 1865, approved July 13, 1866, upon this point, is identical with that of the act of 1865.

In the case at bar there is not only no evidence of an intent to evade the provisions of the act of congress, but the fact that the requisite stamp was subsequently affixed by the collector, negatives such intent.

Under these circumstances it becomes immaterial whether the creditors of the mortgager attached the mortgaged property between the time of the execution and delivery of the mortgage, and the affixing of the requisite stamp, as the instrument was valid without that stamp.

The last clause of the act of congress of 1866, amendatory or § 158 of the act of 1865, relates to the stamping of the instrument by the collector, and does not render an unstamped instrument invalid when there was no “ intent to evade the act of congress ” by omitting to affix the proper stamp to it.

The mortgage was duly executed and recorded, and, besides, the plaintiff held possession of the goods replevied at the time of the attachment. « Judgment for the plaintiff.

Appleton, C. J.; Cutting, and Daneorth, JJ., concurred. Barrows and Tapley, JJ., concurred in the result.