Dewey, J.
Upon the question of the construction of the mortgage, and what property was embraced therein, the court are of opinion that if the boat replevied was, at the date of the [285]*285mortgage and previously thereto, used in connection with, attached to, and situated about the hotel known as the Ocean House, it would, under the general clause in the description of “ all other goods, effects, furniture, chattels, property, things of every name and nature, now used, attached, situate and being in or about the hotel,” &c., have passed by the mortgage, provided the mortgage was duly recorded. And this would be so, although there were four schooner rigged sail boats besides the boat replevied, belonging to the mortgagor at the time he made the mortgage. The language clearly indicates the purpose to cover the whole of the personal chattels attached to the Ocean House, or situated about the same. It was competent thus to describe the property. Harding v. Coburn, 12 Met. 833. And the plaintiff was entitled to a ruling to that effect.
The next inquiry is as to the necessity of recording this mortgage. Was it necessary to record it in the office of the collector of customs ? The St. of U. S. of 1850, c: 27, requiring conveyances of ships and vessels of the United States to be recorded by the collector of customs where such vessel is enrolled or registered, does not apply to this vessel. The earlier St. of 1792, c. 1, had declared what ships and vessels shall be deemed vessels of the United States. It confines this class of vessels to those ships or vessels that may have been or shall be registered by virtue of existing laws of the United States, and no other vessels are to be so considered, “ except such as shall be duly qualified according to law for carrying on the coasting trade and fisheries, or one of them.” This vessel was neither registered, enrolled nor licensed, and was not within the class of vessels in relation to which any conveyance or transfer of title must be recorded in the office of the collector of the customs. This mortgage was not therefore within the St. of U. S. of 1850, c. 27, and the omission to record it in the office of the collector ol customs did not invalidate it.
Did the statutes of this commonwealth require this mortgage to be recorded in the office of the town clerk of the town where the mortgagor resided? By the provisions of Rev. Sts. c. 74, § 5, as regards third persons, such recording is absolutely required [286]*286in all cases of mortgages of personal property. By St. 1843, c. 72, § 2, an additional record of the mortgage is required in the town where the mortgagor principally transacts his business, if he resides in one town and carries on his business in another. These statutes are imperative, and the court sanction no exceptions to the letter of them.
If this mortgage was not so recorded, the omission is fatal to the validity of the same, as against the defendant, unless this boat shall be found to be exempted from the provisions of the statutes just cited, by force of St. of 1851, c. 57, wherein it is enacted that “ it shall not be necessary to the validity of any mortgage, contract of bottomry or respondentia, or any transfer, assignment or hypothecation of any ship or vessel, that the same shall be recorded by any city or town clerk.”
On the part of the plaintiff it is insisted that the exemption of ships and vessels is in the broadest terms, and justifies the omission to record a mortgage of this vessel.
The precise question here arising is, whether St. 1851, c. 57, was intended to apply to a boat like that which is the subject of the present action, and which is described in the writ as “ a schooner rigged sail boat, otherwise called a yacht,” and which was in fact a boat connected with a hotel, and for the use of the same and of its visitors.
In view of the course of legislation upon this subject, we are not satisfied that St. 1851, c. 57, requires the broad construction contended for, and one which, if adopted, would except every pleasure yacht and every sail boat on any of our inland waters from the operation of our registry law as to mortgages of personal property. On the other hand, we perceive sufficient reasons for supposing that this statute had a direct and immediate connection with the St. of U. S. of 1850, c. 27, and that it was especially adopted as applicable to those ships and vessels which had by virtue of that statute been required to be recorded in the office of the collector of customs in the district in which the same had been registered or enrolled.
The statute of the United States having made provision as to the recording of all conveyances of any such ships, the [287]*287continuance of our statute might have been deemed inexpedient, if not improper, in relation to “ vessels of the United States,” so called.
Without, however, expressing any opinion beyond what is required in the present case, the court are of opinion that a yacht of the character of the one in controversy, kept and owned for the purposes described, and not registered, enrolled or licensed under the laws of the United States, was subject to the provisions of the Rev. Sts. c. 74, § 5, and St. 1843, c. 72, and that a mortgage of the same was required to be recorded in the officé of the town clerk of the town in which the mortgagor resided, and in which he principally transacted his business; and that St. 1851, c. 57, has not repealed those provisions in reference to vessels of that description and character, kept for uses like those of the one in controversy.
The next inquiry is, was it thus recorded ? It was recorded in the town of North Chelsea on the 22d of October 1858, but was not recorded in Somerville. If Somerville was the place of residence of the mortgagor, then this mortgage was inoperative for want of proper record. It appears from the bill of exceptions that there was evidence tending to show that the mortgagor lived in Somerville, and also other evidence tending to show that he resided in North Chelsea. Upon the issue as to the place of residence of the mortgagor, and as tending to show that he resided in North Chelsea, the plaintiff offered copies of various writs sued out against said Tufts, in some of which he was described as of North Chelsea, and in others as of Chelsea, and on these processes the said Somerby was retained as counsel; and the plaintiff proposed to show that there was never any plea in abatement filed on the part of the defendant, on account of a misdescription of the place of residence. This evidence was properly rejected, as incompetent between the present parties for the purpose of showing the fact as to the actual residence of the mortgagor. Nor are they to be taken as admissions of Tufts, as to the proper description of his place of residence, except foi the purposes of those particular suits.
[288]*288No exception lies to the ruling of the court as to the conversation between Tufts and the plaintiff’s agent, in reference to the place of recording the mortgage. All that was material and proper was the evidence which was admitted, that Tufts said “ he had gone down to North Chelsea to live.”
Free access — add to your briefcase to read the full text and ask questions with AI
Dewey, J.
Upon the question of the construction of the mortgage, and what property was embraced therein, the court are of opinion that if the boat replevied was, at the date of the [285]*285mortgage and previously thereto, used in connection with, attached to, and situated about the hotel known as the Ocean House, it would, under the general clause in the description of “ all other goods, effects, furniture, chattels, property, things of every name and nature, now used, attached, situate and being in or about the hotel,” &c., have passed by the mortgage, provided the mortgage was duly recorded. And this would be so, although there were four schooner rigged sail boats besides the boat replevied, belonging to the mortgagor at the time he made the mortgage. The language clearly indicates the purpose to cover the whole of the personal chattels attached to the Ocean House, or situated about the same. It was competent thus to describe the property. Harding v. Coburn, 12 Met. 833. And the plaintiff was entitled to a ruling to that effect.
The next inquiry is as to the necessity of recording this mortgage. Was it necessary to record it in the office of the collector of customs ? The St. of U. S. of 1850, c: 27, requiring conveyances of ships and vessels of the United States to be recorded by the collector of customs where such vessel is enrolled or registered, does not apply to this vessel. The earlier St. of 1792, c. 1, had declared what ships and vessels shall be deemed vessels of the United States. It confines this class of vessels to those ships or vessels that may have been or shall be registered by virtue of existing laws of the United States, and no other vessels are to be so considered, “ except such as shall be duly qualified according to law for carrying on the coasting trade and fisheries, or one of them.” This vessel was neither registered, enrolled nor licensed, and was not within the class of vessels in relation to which any conveyance or transfer of title must be recorded in the office of the collector of the customs. This mortgage was not therefore within the St. of U. S. of 1850, c. 27, and the omission to record it in the office of the collector ol customs did not invalidate it.
Did the statutes of this commonwealth require this mortgage to be recorded in the office of the town clerk of the town where the mortgagor resided? By the provisions of Rev. Sts. c. 74, § 5, as regards third persons, such recording is absolutely required [286]*286in all cases of mortgages of personal property. By St. 1843, c. 72, § 2, an additional record of the mortgage is required in the town where the mortgagor principally transacts his business, if he resides in one town and carries on his business in another. These statutes are imperative, and the court sanction no exceptions to the letter of them.
If this mortgage was not so recorded, the omission is fatal to the validity of the same, as against the defendant, unless this boat shall be found to be exempted from the provisions of the statutes just cited, by force of St. of 1851, c. 57, wherein it is enacted that “ it shall not be necessary to the validity of any mortgage, contract of bottomry or respondentia, or any transfer, assignment or hypothecation of any ship or vessel, that the same shall be recorded by any city or town clerk.”
On the part of the plaintiff it is insisted that the exemption of ships and vessels is in the broadest terms, and justifies the omission to record a mortgage of this vessel.
The precise question here arising is, whether St. 1851, c. 57, was intended to apply to a boat like that which is the subject of the present action, and which is described in the writ as “ a schooner rigged sail boat, otherwise called a yacht,” and which was in fact a boat connected with a hotel, and for the use of the same and of its visitors.
In view of the course of legislation upon this subject, we are not satisfied that St. 1851, c. 57, requires the broad construction contended for, and one which, if adopted, would except every pleasure yacht and every sail boat on any of our inland waters from the operation of our registry law as to mortgages of personal property. On the other hand, we perceive sufficient reasons for supposing that this statute had a direct and immediate connection with the St. of U. S. of 1850, c. 27, and that it was especially adopted as applicable to those ships and vessels which had by virtue of that statute been required to be recorded in the office of the collector of customs in the district in which the same had been registered or enrolled.
The statute of the United States having made provision as to the recording of all conveyances of any such ships, the [287]*287continuance of our statute might have been deemed inexpedient, if not improper, in relation to “ vessels of the United States,” so called.
Without, however, expressing any opinion beyond what is required in the present case, the court are of opinion that a yacht of the character of the one in controversy, kept and owned for the purposes described, and not registered, enrolled or licensed under the laws of the United States, was subject to the provisions of the Rev. Sts. c. 74, § 5, and St. 1843, c. 72, and that a mortgage of the same was required to be recorded in the officé of the town clerk of the town in which the mortgagor resided, and in which he principally transacted his business; and that St. 1851, c. 57, has not repealed those provisions in reference to vessels of that description and character, kept for uses like those of the one in controversy.
The next inquiry is, was it thus recorded ? It was recorded in the town of North Chelsea on the 22d of October 1858, but was not recorded in Somerville. If Somerville was the place of residence of the mortgagor, then this mortgage was inoperative for want of proper record. It appears from the bill of exceptions that there was evidence tending to show that the mortgagor lived in Somerville, and also other evidence tending to show that he resided in North Chelsea. Upon the issue as to the place of residence of the mortgagor, and as tending to show that he resided in North Chelsea, the plaintiff offered copies of various writs sued out against said Tufts, in some of which he was described as of North Chelsea, and in others as of Chelsea, and on these processes the said Somerby was retained as counsel; and the plaintiff proposed to show that there was never any plea in abatement filed on the part of the defendant, on account of a misdescription of the place of residence. This evidence was properly rejected, as incompetent between the present parties for the purpose of showing the fact as to the actual residence of the mortgagor. Nor are they to be taken as admissions of Tufts, as to the proper description of his place of residence, except foi the purposes of those particular suits.
[288]*288No exception lies to the ruling of the court as to the conversation between Tufts and the plaintiff’s agent, in reference to the place of recording the mortgage. All that was material and proper was the evidence which was admitted, that Tufts said “ he had gone down to North Chelsea to live.”
The oral evidence of the progress of the negotiations for the sale of the boat, and the time when the bargain was agreed upon by the parties, was competent, notwithstanding the taking of the bill of sale on the 10th of December 1858.
Upon the subject of damages, the court properly admitted evidence of the improvements and expenditures made upon the boat by the defendant after his alleged purchase and before the service of the writ of replevin.
The court properly excluded the evidence offered in rebuttal, that, at the time when the boat was appraised, the officer who ‘ replevied the boat offered to give up to the person who had been the boat-keeper the furniture on board of her, and that the latter declined to receive it. It appeared that the boat and furniture had already been in possession of the officer for the space of three days, and had been taken to Chelsea beach from South Boston, and afterwards brought back to South Boston; and there was no evidence that the defendant had any knowledge of any offer to return said furniture. Under these circumstances, the defendant had the right to hold the plaintiff responsible in damages, as well for his loss in the deprivation of the furniture as the boat.
Assuming the verdict to have been rendered in favor of the defendant upon the issue that this mortgage was not recorded in the town where the mortgagor resided, the title of the mortgagee, as it would seem, must wholly fail, and it would be unnecessary to consider another ground of exception to the instructions. We allude to the instruction substantially to the effect that if the defendant, having an account against Tufts for professional services to an amount exceeding the value of the boat, then due and ascertained, agreed with Tufts to buy the boat at his proposed price, and then orally discharged his account against Tufts, and Tufts agreed that the boat should be [289]*289the defendant’s, such discharge of the indebtedness of Tufts upon the account would in law be a valid payment for the boat, and the boat would thereby pass to the plaintiff, although it was not at the moment in their view, and no actual delivery of the same was then made.
If, however, the case is to be considered under the other aspect, that of a title by a mortgage of this boat duly recorded on -the 22d of October 1858, and the question between the parties is merely which of two bona fide purchasers has the better title, the inquiry would then arise as to what acts would be required to vest the title in the defendant, as against a subsequent purchaser, and whether, as applicable to such a case, the instructions were correct.
As respects the vendor himself, and as respects any mere stranger controverting the title of the defendant, the ruling as to what was sufficient to pass the property to the defendant was correct. But under the decisions of this court, as applied to a question of title arising between a prior and subsequent bona fide purchaser, it would be otherwise, so far as the matter of delivery of the property was concerned. We cannot consider this boat as a vessel on a voyage at sea, incapable of present delivery, or as embraced in that class of cases where, from the nature of the property, no actual delivery is required. There was nothing in the circumstances of this case to prevent a delivery of the possession of this boat by the vendor to the vendee. Something further than the acts stated in the instructions was therefore necessary to be shown to vest the title in the defendant against a subsequent bona fide purchaser. In such case it would be necessary for the defendant to show that he had perfected his title by having an actual delivery to him, or what was an equivalent thereto. Lanfear v. Sumner, 17 Mass. 110. Parsons v. Dickinson, 11 Pick. 352. Packard v. Wood, 4 Gray, 307.
As already remarked, if the plaintiff fails to establish his title by reason of his omission to record the mortgage to him, then the instructions would be correct as given. The case was however submitted to the jury upon two distinct issues, either of which, if found for the defendant, required the verdict to be [290]*290returned in his favor. As to one of these, viz: whether the mortgage was recorded in the place of the residence of the mortgagor, we have found no reason for sustaining the exceptions to the ruling and instructions of the court. Had the verdict been returned solely upon that ground, and that fact was made apparent by the record, judgment might have been entered upon the verdict.. But the defendant equally relied upon another ground of defence, namely, that this boat was not embraced in the mortgage at all, and that for this reason the plaintiff had no case, irrespective of the question of the recording the mortgage, and the court left it to the jury to find the fact upon all the evidence, whether the boat was or was not one of the four schooner rigged sail boats particularly named in the mortgage. If the jury found it was not one of those four boats, they would upon that ground find a verdict for the defendant. • But that issue was put to the jury under erroneous instructions, or an omission to give the proper instructions, as has been already stated. The true question to be put to the jury, as to whether this boat was embraced in the mortgage, was not the limited one stated to them, but the broader inquiry based upon the whole description of property, including the general clause.
Exceptions sustained.