DUFFY v. CHARAK. In re JULES & FREDERIC CO., 200 F. 747

COLT, Circuit Judge. We do not think it necessary to add anything in this case to the exhaustive opinion of the court below, which is reported,-under the title of In re Jules & Frederic Co., in 193 Fed. 533. It is stipulated by counsel that the findings of fact disclosed in that opinion shall be accepted on this appeal. Assuming, therefore, the truth of these findings, we fully concur in the conclusion of the District Court that the mortgaged property was never “delivered to and retained by the mortgagee,” as provided by Revised Laws Mass, c. 198, § 1.

To hold that the possession of Miss Mazur, a clerk in the employ of the mortgagor, was a compliance with the statute, would be, as the court below said, “to enable the parties to practice the very fraud which the statute as to unrecorded mortgages of personal property was intended to prevent.” As to the subsequent possession of the property by the deputy sheriff on a writ of attachment, it is clear that his possession was exclusive under the authorities as applied to the facts of this case.

It might have been otherwise if there had been an actual or symbolical delivery of the property subject to the attachment, in which both the mortgagee and the mortgagor took part; In the absence, however, of any such delivery, no title would pass to the mortgagee under the Massachusetts decisions. Dempsey v. Gardner, 127 Mass. 381, 382, 34 Am. Rep. 389; Fettyplace v. Dutch, 13 Pick. (Mass.) 388, 392, 23 Am. Dec. 688; Benjamin on Sales (7th Ed.) p. 725.

We therefore fully concur with the ruling of the District Court 'that “the deputy sheriff’s possession while it lasted was exclusive, and that it continued until the filing of the petition in bankruptcy under which there has been adjudication.” In No. 970, Duffy v. Charak, Trustee, the decree of the District Court is affirmed, and the appellee recovers his costs of appeal.- In No. 982, Duffy, Petitioner, let there be a decree dismissing the petition, with costs to the respondent.