Gray, J.
We may assume, as contended by the defendants, and as being the most favorable View to them, that the instru ments which passed between Hepworth & Carr and the plaintiff constituted a mortgage from them to him.
By the Gen. Sts. c. 151, § 1, a mortgage of personal property (except a ship or vessel, or goods at sea or abroad) is not valid against any person other than the parties thereto, unless it is recorded, “ or the property mortgaged is delivered to and retained by the mortgagee.” Before the passage of the St. of 1832, c. 157, of which this provision is a reenactment, possession was not necessary to give effect to a mortgage, made in good faith, even as against third persons. Homes v. Crane, 2 Pick. 607. The manifest intention of the legislature was, to require in the case of an unrecorded mortgage of chattels such delivery of possession as would be necessary in the case of an absolute sale, which need not be recorded. The nature of the possession must depend upon the bulk and character of the property. The possession of mortgaged chattels must indeed, by the statute, not only be delivered to, but retained by, the mortgagee; but it is sufficient if it be delivered before and actually retained until the accruing of any title which is set up by a third person in opposition to the mortgage. Mitchell v. Black, 6 Gray, 106.
The property in this case consisted of the parts of two unfinished steam-engines in the workshop of the mortgagors. These parts were very numerous, some of them of great bulk and weight, and were scattered in different rooms of the shop. At the time of executing the mortgage, and for the purpose of a formal delivery of the property, one of the mortgagors went [401]*401through the shop with the plaintiff, and showed him the various parts and pieces of the engines; Choate, who was employed by the mortgagors as bookkeeper and paymaster and to keep the time of their workmen and attend to such of their business out of doors as he might be directed to attend to, signed and gave to the plaintiff a receipt for the engines and all the parts and pieces thereof, agreeing to hold the same for him and to deliver them to him on demand, without any expense of storage or keeping; and it was arranged and understood between the parties that the mortgagors should go on and finish the engines. The workmen accordingly continued to work on the different parts under the direction of the mortgagors as they had done previously. And no directions were given to keep the transaction secret. There was evidence tending to show that there was no access to the premises except through the counting-room in which Choate was, or the front gate which was fastened on the inside and was in full view of the counting-room; that Choate left the premises from six in the evening to seven in the morning in charge of a watchman in the employ and pay of the mortgagors, and locked them up on Sundays; that the mortgagors became insolvent; that Choate told Bayley, the messenger who came to take possession of the property under a warrant in insolvency, that he was keeping the various parts of the engines for the plaintiff; and accepted a deputation from the messenger as keeper of all the property of Hepworth & Carr, without any schedule thereof, supposing however that the messenger took or could hold only the other property which belonged to Hepworth & Carr or which was attachable as their property; that Choate afterwards continued to hold the engines until Merrill, a deputy sheriff, came and took them on a writ of replevin in favor of Tetlow against Bayley; and that Choate was afterwards appointed keeper by Merrill, and continued to hold the property until Merrill delivered it to Tetlow.
If the conveyance from Hepworth & Carr had been an absolute one, this evidence would have warranted a jury in finding a sufficient delivery of possession to the plaintiff as against attaching creditors of articles like these; and the fact that the [402]*402person having the custody of the property in behalf of the vendee was in the employ and pay of the vendors would not make the delivery and possession less effectual. Carter v. Willard, 19 Pick. 1. Bullard v. Wait, 16 Gray, 55.
The defendants indeed introduced contradictory testimony upon some points; but the question whether upon the whole evidence an actual delivery of possession' was proved was a question for the jury under proper instructions. Phelps v. Cutler, 4 Gray, 137.
The presiding judge therefore rightly refused to rule that there was no such taking and retaining of possession of the engines by the plaintiff as to entitle him to maintain this action.
The instructions given were sufficiently favorable to the defendants. They required the jury to find that the plaintiff had actual, and not. merely constructive possession; that he kept and secured the property .as such property is under ordinary circumstances required to be secured; that the possession of Hepworth & Carr for the purpose of finishing the engines was subordinate to Choate’s possession and merely for the purpose of increasing the value of the property; that his possession was not purposely kept secret or concealed; that it began before, and continued when, the messenger came to the premises to take possession ; and that Choate, as the plaintiff’s agent and in his behalf, at that time had the property in his effectual control and in his actual keeping and possession. The instruction that if Choate, rs the plaintiff’s agent and in his behalf,- was in actual possession of the property at and just before that time, any previous remissness on his part would be unimportant, was open to no just objection. Mitchell v. Black, above cited. The request for an instruction that, even if the previous acts of Choate constituted such a retention of possession as was required by law, yet such retention in behalf of the plaintiff ceased by Choate’s becoming the keeper under the messenger, was rightly refused. There was conflicting evidence upon the point whether his deputation as keeper included these engines ; and the jury were expressly instructed that if he at that time knowingly or actually surrendered the property to the messenger, making no claim and [403]*403giving no notice of claim on behalf of the plaintiff, it would be a failure of continuity of possession, which would be fatal to the plaintiff’s title.
The rulings requested, that Choate, by giving up the property to Merrill when he claimed it upon a writ of replevin, and after-wards becoming a keeper of the property for him, ceased to retain it for the plaintiff as required by law; and that if (as Merrill testified) Choate surrendered it to Merrill upon an order from Bayley., then there was not such a retaining of possession in behalf of the plaintiff as was required by law; were rightly refused. If the deputy sheriff claimed the possession under the authority of the writ of replevin which he held, Choate’s allowing him to take it into his own possession, and (after he had so taken it and thus wrongfully deprived the plaintiff of the possession previously kept in his behalf by Choate) agreeing to act as his keeper, was not necessarily an abandonment of the plaintiff’s possession.
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Gray, J.
We may assume, as contended by the defendants, and as being the most favorable View to them, that the instru ments which passed between Hepworth & Carr and the plaintiff constituted a mortgage from them to him.
By the Gen. Sts. c. 151, § 1, a mortgage of personal property (except a ship or vessel, or goods at sea or abroad) is not valid against any person other than the parties thereto, unless it is recorded, “ or the property mortgaged is delivered to and retained by the mortgagee.” Before the passage of the St. of 1832, c. 157, of which this provision is a reenactment, possession was not necessary to give effect to a mortgage, made in good faith, even as against third persons. Homes v. Crane, 2 Pick. 607. The manifest intention of the legislature was, to require in the case of an unrecorded mortgage of chattels such delivery of possession as would be necessary in the case of an absolute sale, which need not be recorded. The nature of the possession must depend upon the bulk and character of the property. The possession of mortgaged chattels must indeed, by the statute, not only be delivered to, but retained by, the mortgagee; but it is sufficient if it be delivered before and actually retained until the accruing of any title which is set up by a third person in opposition to the mortgage. Mitchell v. Black, 6 Gray, 106.
The property in this case consisted of the parts of two unfinished steam-engines in the workshop of the mortgagors. These parts were very numerous, some of them of great bulk and weight, and were scattered in different rooms of the shop. At the time of executing the mortgage, and for the purpose of a formal delivery of the property, one of the mortgagors went [401]*401through the shop with the plaintiff, and showed him the various parts and pieces of the engines; Choate, who was employed by the mortgagors as bookkeeper and paymaster and to keep the time of their workmen and attend to such of their business out of doors as he might be directed to attend to, signed and gave to the plaintiff a receipt for the engines and all the parts and pieces thereof, agreeing to hold the same for him and to deliver them to him on demand, without any expense of storage or keeping; and it was arranged and understood between the parties that the mortgagors should go on and finish the engines. The workmen accordingly continued to work on the different parts under the direction of the mortgagors as they had done previously. And no directions were given to keep the transaction secret. There was evidence tending to show that there was no access to the premises except through the counting-room in which Choate was, or the front gate which was fastened on the inside and was in full view of the counting-room; that Choate left the premises from six in the evening to seven in the morning in charge of a watchman in the employ and pay of the mortgagors, and locked them up on Sundays; that the mortgagors became insolvent; that Choate told Bayley, the messenger who came to take possession of the property under a warrant in insolvency, that he was keeping the various parts of the engines for the plaintiff; and accepted a deputation from the messenger as keeper of all the property of Hepworth & Carr, without any schedule thereof, supposing however that the messenger took or could hold only the other property which belonged to Hepworth & Carr or which was attachable as their property; that Choate afterwards continued to hold the engines until Merrill, a deputy sheriff, came and took them on a writ of replevin in favor of Tetlow against Bayley; and that Choate was afterwards appointed keeper by Merrill, and continued to hold the property until Merrill delivered it to Tetlow.
If the conveyance from Hepworth & Carr had been an absolute one, this evidence would have warranted a jury in finding a sufficient delivery of possession to the plaintiff as against attaching creditors of articles like these; and the fact that the [402]*402person having the custody of the property in behalf of the vendee was in the employ and pay of the vendors would not make the delivery and possession less effectual. Carter v. Willard, 19 Pick. 1. Bullard v. Wait, 16 Gray, 55.
The defendants indeed introduced contradictory testimony upon some points; but the question whether upon the whole evidence an actual delivery of possession' was proved was a question for the jury under proper instructions. Phelps v. Cutler, 4 Gray, 137.
The presiding judge therefore rightly refused to rule that there was no such taking and retaining of possession of the engines by the plaintiff as to entitle him to maintain this action.
The instructions given were sufficiently favorable to the defendants. They required the jury to find that the plaintiff had actual, and not. merely constructive possession; that he kept and secured the property .as such property is under ordinary circumstances required to be secured; that the possession of Hepworth & Carr for the purpose of finishing the engines was subordinate to Choate’s possession and merely for the purpose of increasing the value of the property; that his possession was not purposely kept secret or concealed; that it began before, and continued when, the messenger came to the premises to take possession ; and that Choate, as the plaintiff’s agent and in his behalf, at that time had the property in his effectual control and in his actual keeping and possession. The instruction that if Choate, rs the plaintiff’s agent and in his behalf,- was in actual possession of the property at and just before that time, any previous remissness on his part would be unimportant, was open to no just objection. Mitchell v. Black, above cited. The request for an instruction that, even if the previous acts of Choate constituted such a retention of possession as was required by law, yet such retention in behalf of the plaintiff ceased by Choate’s becoming the keeper under the messenger, was rightly refused. There was conflicting evidence upon the point whether his deputation as keeper included these engines ; and the jury were expressly instructed that if he at that time knowingly or actually surrendered the property to the messenger, making no claim and [403]*403giving no notice of claim on behalf of the plaintiff, it would be a failure of continuity of possession, which would be fatal to the plaintiff’s title.
The rulings requested, that Choate, by giving up the property to Merrill when he claimed it upon a writ of replevin, and after-wards becoming a keeper of the property for him, ceased to retain it for the plaintiff as required by law; and that if (as Merrill testified) Choate surrendered it to Merrill upon an order from Bayley., then there was not such a retaining of possession in behalf of the plaintiff as was required by law; were rightly refused. If the deputy sheriff claimed the possession under the authority of the writ of replevin which he held, Choate’s allowing him to take it into his own possession, and (after he had so taken it and thus wrongfully deprived the plaintiff of the possession previously kept in his behalf by Choate) agreeing to act as his keeper, was not necessarily an abandonment of the plaintiff’s possession. The circumstances under which the sheriff took possession were rightly submitted to the jury as evidence bearing upon the character of Choate’s possession; with an instruction that “ if Choate became a keeper for Merrill and held for him, without making any claim or giving any notice of any on behalf of the plaintiff, and only insisting that he would not allow the property to go into Merrill’s hands excepting on Bayley’s order, it would be evidence tending to show that Choate was not keeping the property for the plaintiff and was not the plaintiff’s agent at that time.”
The instruction that it would be sufficient, if Choate took and maintained such possession as a deputy sheriff is required to keep in case of an attachment of like property, was correct. Sanderson v. Edwards, 16 Pick. 145, 146. Shepherd v. Butterfield, 4 Cush. 425. As it does not appear that the defendants asked for more particular explanations of the requirements of keeping by an attaching officer, they have no ground of exception to the omission to give them.
The policies of insurance on the property, obtained by Hep-worth & Carr in favor of the plaintiff on the day of the execution of the instruments which passed between them, were part of the transaction between the parties; and the bill of excep* [404]*404tians does not show that they were allowed any weight or effect upon the question of delivery. The defendants therefore have no ground of exception to their introduction.
The contract between Hepworth & Carr and Tetlow for the manufacture of the engines did not transfer the property in them to Tetlow before their completion. Briggs v. Light Boat, 7 Allen, 293, and cases cited. The contract between Tetlow and the United States did not divest Hepworth & Carr of their property in the engines, or deprive them of the power to mortgage them for a valuable consideration to the plaintiff. ‘ Neither these contracts nor the payments made under them can affect the plaintiff’s rights as mortgagee. Exceptions overruled.