State v. Lowe

109 A. 910, 94 Vt. 200, 1920 Vt. LEXIS 190

Opinion

Miles, J.

This is a prosecution under section 2798 of the Greneral Laws, which reads as follows: "A mortgagor shall not ■execute a second or subsequent mortgage of personal property, while the same is subject to a previously existing mortgage given by said mortgagor, unless the existence of such previous mortgage is set forth in the subsequent mortgage.” Gr. L. 2799 imposes a penalty for a violation of the foregoing section.

No question is made but that the respondent executed a mortgage upon personal property which he had previously mortgaged and which was then outstanding against the property subsequently mortgaged, without stating in such mortgage the existence of the one previously given.

The ease was tried by jury, and during tbe trial many exceptions were taken, and at its close tbe respondent filed a motion in arrest of judgment; but tbe only exception relied upon in tbe respondent’s brief is tbe one taken to tbe exclusion of bis offer to sbow tbat be omitted to state tbe existence of the previous mortgage in tbe second mortgage because of an agreement with tbe authorized agent- of tbe mortgagee tbat be need not do so, and tbat tbe omission was in good faith and without criminal intent.

[1] Tbe offer comes to this: Tbat, as tbe parties to tbe mortgage considered it unnecessary to have the mortgage show, as tbe fact was, tbat tbe property described therein was covered by a previously existing mortgage, placed thereon by tbe mortgagor, tbe latter is not liable under tbe statute under which tbe present prosecution is based. On tbe exception to tbe exclusion of tbe offer tbe question is argued as raising one of intent. It is enough to say in disposing of tbe question raised by tbe exception tbat it is a matter affecting a public interest, and not only tbe mortgagee was interested, but also assignees of tbe mortgage as well as creditors of tbe mortgagor and subsequent purchasers of tbe property. This being so, tbe understanding of tbe parties to the mortgage offered to be shown does not meet tbe purpose of the statute, and we find no error in the proceedings below,. and the respondent takes nothing by his exception.

Let execution Toe done.