Shapleigh v. Wentworth

54 Mass. 358

• Court: Massachusetts Supreme Judicial Court
• Decided: October 15, 1847
• Status: Published

Opinion

Shaw, C. J.

Without deciding the question, whether an unrecorded mortgage of personal property is valid against an attaching creditor with notice, the court are of opinion that this verdict cannot be sustained.

The verdict, as first returned, was not such as to warrant a direction to the jury to change their finding, as of course, into a general verdict for the plaintiff. They had been directed, that if the attaching creditor had actual notice, and if the mortgagee took actual possession before the attachment, and retained it till the property was attached, they should find for the plaintiff. The jury returned the first fact, that the attaching creditor had notice, and said nothing of the other, viz. whether the mortgagee took and retained possession. Without the latter, it is very clear that the mortgage could not be valid; and that it afforded no authority to enter a general verdict for the plaintiff. See Travis v. Bishop, (ante, 304.)

Verdict set aside, and a new trial ordered.