Williams v. Nichols

Massachusetts Supreme Judicial Court

Williams v. Nichols

121 Mass. 435, 1877 Mass. LEXIS 11

CourtMassachusetts Supreme Judicial Court

DecidedJanuary 6, 1877

StatusPublished

Cited by6 cases

This text of 121 Mass. 435 (Williams v. Nichols) is published on Counsel Stack Legal Research, covering Massachusetts Supreme Judicial Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Williams v. Nichols, 121 Mass. 435, 1877 Mass. LEXIS 11 (Mass. 1877).

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Opinion

Morton, J.

It appears by the findings of the justice, who presided at the trial in the Superior Court, that, in January, 1873, Shaw & Bruce owed the plaintiff $604, and then gave him a bill of certain goods, intending it as security for the debt. This is erroneously called in the bill of exceptions a bill of sale. It is in fact a common bill of parcels. The goods were not delivered to the plaintiff, and never came into his possession. Shaw & Bruce went into bankruptcy on January 6, 1874, and the defendant was appointed their assignee, and took possession of the property. The bill of parcels was recorded in the office of the city clerk of Salem on December 26,1873. The presiding judge [436]*436found that the bill of parcels was in effect a mortgage, and ordered judgment for the plaintiff.

We are of opinion that upon the facts found the plaintiff cannot maintain his action. The statute provides that mortgages of personal property shall be recorded on the records of the city or town where the mortgagor resides, and on the records of the city or town in which he principally transacts his business; and that, “ unless a mortgage is so recorded, or the property mortgaged is delivered to and retained by the mortgagee, it shall not be valid against any person other than the parties thereto.” Gen. Sts. e. 151, § 1. Without discussing the question how far and for what purposes a mortgage of personal property may be proved by paroi testimony, it is decisive of this case that an oral mortgage, if one is attempted to be made, is in its nature such that it cannot be recorded under the statute.

The plaintiff has not recorded a mortgage in this case. Recording a bill of parcels does not make it a mortgage, nor answer the requirements of the statute. It is doubtful if the transaction in this case can be held to amount to anything more than a pledge, or an attempt to pledge. Walker v. Staples, 5 Allen, 34. But, if the plaintiff can be regarded as a mortgagee, the property mortgaged has not been delivered to and retained by him, and his mortgage has not been recorded. It is therefore, under the statute, invalid against any person other than the narties thereto. Exceptions sustained.

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Morton, J.

It appears by the findings of the justice, who presided at the trial in the Superior Court, that, in January, 1873, Shaw & Bruce owed the plaintiff $604, and then gave him a bill of certain goods, intending it as security for the debt. This is erroneously called in the bill of exceptions a bill of sale. It is in fact a common bill of parcels. The goods were not delivered to the plaintiff, and never came into his possession. Shaw & Bruce went into bankruptcy on January 6, 1874, and the defendant was appointed their assignee, and took possession of the property. The bill of parcels was recorded in the office of the city clerk of Salem on December 26,1873. The presiding judge [436]*436found that the bill of parcels was in effect a mortgage, and ordered judgment for the plaintiff.

We are of opinion that upon the facts found the plaintiff cannot maintain his action. The statute provides that mortgages of personal property shall be recorded on the records of the city or town where the mortgagor resides, and on the records of the city or town in which he principally transacts his business; and that, “ unless a mortgage is so recorded, or the property mortgaged is delivered to and retained by the mortgagee, it shall not be valid against any person other than the parties thereto.” Gen. Sts. e. 151, § 1. Without discussing the question how far and for what purposes a mortgage of personal property may be proved by paroi testimony, it is decisive of this case that an oral mortgage, if one is attempted to be made, is in its nature such that it cannot be recorded under the statute.

The plaintiff has not recorded a mortgage in this case. Recording a bill of parcels does not make it a mortgage, nor answer the requirements of the statute. It is doubtful if the transaction in this case can be held to amount to anything more than a pledge, or an attempt to pledge. Walker v. Staples, 5 Allen, 34. But, if the plaintiff can be regarded as a mortgagee, the property mortgaged has not been delivered to and retained by him, and his mortgage has not been recorded. It is therefore, under the statute, invalid against any person other than the narties thereto. Exceptions sustained.

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Bluebook (online)

121 Mass. 435, 1877 Mass. LEXIS 11, Counsel Stack Legal Research, https://law.counselstack.com/opinion/williams-v-nichols-mass-1877.

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