Flanders v. Colby, 28 N.H. 34

Gilchrist, C. J. The plaintiff had a mortgage upon Chase’s personal property. The defendant aided Chase to secrete the property from the creditors of Chase, and the plaintiff thereby lost the benefit of his mortgage. He alleges, in his count, that the defendant knew of the mortgage, and did this to deprive him of the benefit of it. Whether he knew of it or not does not appear, but the court ruled that the jury must be satisfied that what the defendant did was done with a knowledge of the plaintiff’s mortgage, and with a view to defraud him. The first count is in trover.

There is nothing to impugn the validity of the mortgage. The defendant interfered with the plaintiff’s rights. In the case of Hyde v. Noble, 13 N. H. Rep. 494, the action was trover, and the plaintiff was a part owner of the property. Parker, C. J., says: “ The purchase,by the defendant’s taking possession, as they appear to have done, and holding it as their own property, was a conversion. They received the possession from one who had no authority to deliver it to them, and they, by the purchase, undertook to control it as their own property.

This was an assumption of power over it, inconsistent with the rights of the plaintiff. Their possession was unlawful in its inception, by reason of the want of authority in Keniston to make the transfer.” This case seems to cover all the ground. But even supposing that the defendant did not know of the mortgage, that is no answer. Sargent v. Gile, 8 N. H. Rep. 325, decides that where the defendant bought the goods of the vendor, supposing them to be his, he was, nevertheless, liable in trover. In Williams v.

Merle, 11 Wend. 380, cited in that opinion, where the vendor had no authority to sell, the defendant was held liable in trover, although he purchased in good faith and for a valuable consideration. So in Stevens v. Eames, 2 Foster’s Rep. 568, the mortgage, by a rkceipter, of goods attached, is a conversion. In Sinclair v. Tarbox, 2 N. H. Rep. 135, trover was held to lie, although the defendant was ignorant, at the time of the removal of the property, of the plaintiff’s interest in it. This decision has never been departed from. The defendant fraudulently received the property, and subjected himself to a penalty.

Rev. Stat. eh. 438, § 20. Shall he be heard to say that he did not know of the mortgage, for the purpose of shielding himself from, a civil suit ? As to the second count, all that relates to the knowledge, by the defendant, of the mortgage, and his intent to injure the plaintiff, may be struck out, and still a cause of action remain. In Adams v. Paige, 7 Pick. 550, it is said by the court: 11 We see no necessity for proving, nor do we impute to the defendants any wicked or corrupt design to cheat or defraud the plaintiffs.

It is enough that they associated together, and aided each other to do an unlawful act, prejudicial to the plaintiffs. So that in regard to the law of debtor and creditor, it is fradulent. The expletives, in the declaration, may all be struck out and yet the action remain, for the facts stated and proved sustain it.” But supposing nothing to be struck out, still the plaintiff was a creditor, and this was done to defraud creditors. Why is not this sufficient ? But whether the instruction of the court, on this point, was correct, it is not necessary to determine.

The judge must make such suggestions upon the evidence as he deems most proper. This is a matter which cannot be limited. The admission of the letter was also in the discretion of the court, and is justified by the cases cited. Blackley v. Sheldon, 7 Johns. 32; Sanford Manufacturing Co. v. Wiggin, 14 N. H. Rep. 441. Verdict set aside.