Erastus Davis versus Edmund J. Mills, 18 Pick. 394

Shaw C. J. delivered the opinion of the Court. In an action of replevin, by one claiming as mortgagee of personal property, against an officer, who has attached it as the property of a former owner, the defendant denies that the plaintiff has any title under his mortgage, on the ground of the supposed misdescription of the note referred to. But we think the defendant has mistaken the position in which he stands, in reference to this mortgage. Proof of the execution and registry of the mortgage, is prima facie evidence of title in the plaintiff.

It is a defeasible title, but good till avoided by performance of the condition, and it is for the defendant, if he can, to show it avoided, by proving performance. The plaintiff has no occasion to produce or prove the note, because he does not hold it, it is not presumed to be in his possession, and the condition is to indemnify him against the payment of a note, on which he was surety for the mortgager, and held by a third person.

It is then for the defendant to avoid the title made under this mortgage, and to show, that the note had been paid, or the plaintiff released, or that for some cause the plaintiff could not be damnified. To do this, he must offer and rely upon the paroi proof stated in the case. If admitted, it proves that there was no other note, than the one described as held by Taylor, and that that was the note intended in the mortgage ; if rejected, it would leave the prima facie title upon the mortgage, unimpeached; and on either ground the plaintiff is entitled to recover