Kanaga v. Taylor.

1. The court did not charge the jury as requested by defendant's

counsel in any particular.

2. The court erred in the charge which it gave to the jury.

3. The verdict was for plaintiff, when it should have been for defendant.

From the bill of exceptions the following facts appear:

On the 17th day of June, 1853, the plaintiff, at Buffalo, New York, sold a piano forte to one William Gregory, of that place, for $225.00, to be paid for as follows: $25.00 in hand, and $66,6% every thirty days, until the whole was paid, with interest.

The $25.00 was paid in hand, and a mortgage was executed on the piano by Gregory to the plaintiff, to secure the balance, and the piano was delivered over to Gregory, and taken by him to his residence in Buffalo. Plaintiff had no knowledge or expectation that the piano was to be removed from Gregory's dwelling-house; but it was taken with the understanding that it was to remain in his family for his private use, and that plaintiff was to keep it in tune one year.

The mortgage was registered in the office of the clerk of Erie county, at Buffalo, New York, June 17, 1853, and became valid by the laws of that state.

Two weeks after the execution of the mortgage the plaintiff called at Gregory's house and ascertained that the piano had been previously boxed up, and that Gregory had removed to Cleveland, Ohio, taking it with him.

It was proved by the testimony of Henry Moore, a witness called by defendant, that on the 12th of July, 1853, Gregory came to him, representing himself to be a resident of Cleveland, Ohio, but that he had lately come from Buffalo, New York; that said Moore was, at the time, an auctioneer and commission merchant in Cleveland; that Gregory brought the piano to him and wanted an advance of one hundred dollars, which Moore made, and took of Gregory the following instrument:

"Received, Cleveland, July 12, 1853, of H. Moore, one hundred. dollars, advanced on a piano forte, to be sold at auction at the expiration of sixty days, *unless the money be returned. In [136 the meantime, to be held at private sale for two hundred dollars. I agree to pay at the rate of five dollars per month, to include interest, commission, and storage.

WILLIAM GREGORY, "For L. Maiten, Bedford, Ohio."

Kanaga v. Taylor.

On the 22d of July, 1853, Gregory applied to Moore for a further advance upon the piano, when the latter gave him twenty-seven dollars, and took from Gregory a paper of the following tenor:

"Received, Cleveland, July 22, 1853, of Henry Moore, twenty. seven dollars further advance on piano forte, now in his possession, and unless I return the said sum of twenty-seven dollars to him by the 11th day of August, 1853, then the said piano is absolutely his, and I hereby agree to warrant and defend him in possession of the same. WILLIAM GREGORY."

Moore asked Gregory if there was any claim against the piano. Gregory told him there was not. Moore said that it was a question which he always asked when property was left with him for sale, and he was unacquainted with the parties. Moore further stated that he never heard of any lien or claim being on or against said piano, until late in the fall of 1853, and some two or three months after the sale to the defendant, when he was notified of the mortgage, and the piano demanded. That previous to selling the piano to the defendant he sold it to another person for his (Moore's) benefit, and after that sold it to the defendant, at private sale, for $175.00.

No steps were taken by plaintiff for several months after Gregory left Buffalo, taking the property with him to make known his claim, or recover the property.

Nor was the mortgage deposited for record in any clerk or recorder's office in Ohio. Gregory made payment on the mortgage, so as to reduce the amount at the commencement of this suit to $157. The defendant and Moore were citizens of Ohio at the times

aforesaid.

This state of facts appearing, the defendant's counsel requested the court to charge the jury:

1. That the mortgage can not be enforced in this state, as a con137] tract made in New York, except by comity, and that by *comity it can not be enforced, when it clashes with the rights of our own citizens.

2. That if the piano forte was in the State of New York when the mortgage was executed, and was left in possession of the mortgagor, and by him brought to the city of Cleveland and pledged or sold to a citizen of Ohio for a valuable consideration paid, and without any notice of the plaintiff's claim, the plaintiff can not recover

Kanaga v. Taylor.

in this action, unless the mortgage was deposited in the proper office, in Ohio, as required by "an act to require mortgages or bills of sale of personal property to be deposited with township clerks."

3. That if the mortgagee, after said piano forte was brought to Cleveland from Buffalo, by the mortgagor, delayed an unreasonable time to pursue said property, and take it, or give notice of his claim on the property, by depositing his mortgage as is required by the aforesaid law of this state, or otherwise to give notice of his claim, and in the meantime the property was sold or pledged to a citizen of Ohio for a valuable consideration paid, without notice of the plaintiff's claim, then the plaintiff could not recover. This charge the court refused to give.

The court directed the jury-That the mortgage upon which plaintiff bases his right to recover in this action, being a mortgage executed in the State of New York, and the property and parties being there at the time the mortgage was executed, if the mortgage was valid by the laws of the State of New York, it was valid here, and would entitle the plaintiff to recover, and it was not necessary for him to deposit the mortgage for record in any office in Ohio. That leaving the property in the possession of the mortgagor, and permitting him to remain in possession of it, was prima facie evidence that the mortgage was fraudulent in fact, but this presumption was liable to be rebutted by testimony showing that the transaction was fair and honest, and founded upon a good consideration. That if such presumption of fraud was rebutted, the fact that the property was taken to Cleveland, and there sold to a citizen of Ohio, or pledged for a valuable consideration paid, without notice of the mortgage, the plaintiff was still entitled to recover, as against said purchaser or pledgee, *and the mere right to pursue after said [138 mortgaged property for the time it appears by the testimony in this case to have been omitted, and retake it, or deposit his mortgage in the proper office, as required by the laws of Ohio above named, would not prevent the plaintiff's recovering, so long as said mortgage was kept good by the laws of the State of New York; and the fact that interests of citizens of Ohio were to be affected in this action, made no difference, as they could claim no better or greater privileges than if they were citizens of the State of New York.

To which charge, and refusal to charge, defendant excepted, and now asks for a new trial.

Kanaga v. Taylor.

Bishop, Backus & Noble, for defendant, in support of the motion for a new trial, urged the following points:

1. We claim that the plaintiff's lien by virtue of his mortgage, was lost by the mortgagor's bringing the property into the State of Ohio and disposing of it to a citizen of Ohio, by pledging and afterward selling it, without the pledgee or purchaser having any knowledge of the plaintiff's mortgage. Story Confl. Laws, secs. 244, 323, 326; Ingraham v. Geyer, 13 Mass. 146, 147; Skiff v. Solace, 23 Vt. 279; Potter v. Brown, 5 East, 124; Martin v. Hill, 12 Barb. 632. 2. The plaintiff's claim should fail, because to enforce it would not only prejudice the rights of our own citizens, but it would contravene our own positive law and policy. Story Confl. Laws, secs. 323– 328; Swan's Rev. Stat. 315; 2 Hilliard on Mortg. 212, 244, 250; Leland v. Medora, 2 W. & Minot, 103.

3. If the plaintiff's claim was ever available in this state, it was by comity, and it would work injustice to enforce it against the defendant, and therefore it can not prevail.

It is a principle well established, that comity will never require the tribunal where the remedy is sought, to enforce a claim arising under a foreign contract, so as to work injustice, but the court enforcing this claim will look to the justice of the case. If the justice of the case is regarded here, the defendant certainly must succeed. Wrightman v. Steamboat Albree, American Law Reg., vol. 4, Nos. 1 and 2, p. 119.

139] *For the courts of Ohio to enforce the plaintiff's mortgage against the defendant, would contravene the principle so clearly settled in Selsor v. Brock, 3 Ohio St. 308, "that where one of two innocent persons must suffer by the fraud of a third person, he who trusted the third person, and placed the means in his hands to commit the wrong, must bear the loss." See also Root v. French, 13 Wend. 572.

In this case the plaintiff is trebly in fault. 1. He left the propperty in the mortgagor's hands, thus enabling him to pass it off to an innocent purchaser or pledgee, without notice of his claim; 2. He did not send his mortgage to Cleveland and deposit it in the proper office; 3. He delayed for months to pursue after and look up the property. And by these means he gave Gregory abundant opportunity to deceive others, of which opportunity he availed himself most fully. See Story's Confi. Laws, sec. 386, note 1. Also 4 Mass. 467.

Kanaga v. Taylor.

Willey & Cary, for plaintiff, argued:

That a case of this description is not within the letter or spirit of our statute; that the plaintiff is entitled to the enforcement of his mortgage in the same manner as if no legislation upon the subject had transpired; that to enforce it would neither prejudice the rights of our own citizens, in the sense to which that principle is limited, nor contravene any law or policy of Ohio; that the claim of the plaintiff was not impaired by his omission to record his mortgage in Ohio, nor by the comparatively brief interval which elapsed after the property was removed, nor by any act of his tending to the prejudice of third persons.

The plaintiff was entitled to a recognition of his mortgage lien. Roland v. Gowdy, 5 Ohio, 200; 1 Kent Com. 262; 5 Serg. & Rawle, 130; Hooban v. Bidwell, 16 Ohio, 509; Coles v. Clark, 3 Cush. 399; 2 Hill. Mort. 315, secs. 4-7; Brown v. Bement, 8 Johns. 98; Langdon v. Buel, 9 Wend. 83; Ackley v. Finch, 7 Cow. 292; Whitney v. Heywood, 6 Cush. 82; 1 Cow. 496; 12 Met. 310; 2 N. Y. Rev. Stat. 318, secs. 9, 10; Supreme Court of N. Y. (McNett's Dep.), Martin v. Hill, 12 Barb. 631; Story's Confl. Laws, secs. 391, 402; *p. 668, [140 sec. 402; p. 366, secs. 35, 242, 390-402; Offutt v. Flagg, 10 N. H. 46; 2 Hill. Mort. 258, sec. 31; Hoit et al. v. Remick, 11 N. H. 285; Brigham v. Weaver et al., 6 Cush. 298; Longworthy v. Little, Law Rep. Nov. 1853, 410, (C. J. Shaw); Strang & Simpson v. J. G. Tenant et al. (Dis. Ct. Hamilton Co.); 2 Hill. Mort. 221, sec. 40; Lane v. Borland, 2 Shepp. 77.

BOWEN, J. The motion for a new trial, in this case, is urged by the counsel for defendant, on the ground, mainly, that the plaintiff's lien, by virtue of his mortgage, was lost by the mortgagor's bringing the property into this state and disposing of it here, to a purchaser having no knowledge of the mortgage.

It is admitted that the instrument, under which the plaintiff claims to recover, was valid in New York. It was not only executed, as the law there requires it should be, but it was registered in accordance with the statute, in the town where both parties resided, and the possession and use of the chattel, by the mortgagor, were there fully sanctioned by law. Before any breach in the payment of the money had occurred the property was removed into this state, and became subject to our laws. This removal was without the plaintiff's permission, and if