Anthony v. Butler
38 U.S. 423

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U.S. Supreme Court

Anthony v. Butler, 38 U.S. 13 Pet. 423 423 (1839)

Anthony v. Butler

38 U.S. (13 Pet.) 423

Syllabus

A mortgage was executed by D. G. as the agent of the Union Steam Mill Company, conveying to the mortgagee certain lands in Rhode Island, with a woolen mill and other buildings, with the machinery in the mill. D. G. was, and had been the general agent of the company, and as such had made all purchases and sales for the company, and the mortgage was executed by him, with the consent and authority of the persons who at the time of its execution were members of the company. The machinery and other movables had been taken in execution by the Marshal of Rhode Island, under an execution issued on a judgment obtained after the mortgage against the company. The Court held that although the mortgage was not valid as the deed of the corporation, it was sufficient to convey a title to the mortgagee in the machinery, and that he could maintain an action of replevin for them against the marshal.

The mortgage was recorded by the town clerk of the place where the property was, he being the proper officer to record such instruments under the statute of Rhode Island. He kept two books, in one of which he recorded mortgages, which included real estate, and in the other mortgages upon personal property only. The mortgage in this case was first recorded in the book kept for recording mortgages on real estate. And he gave a certificate

"lodged in the town clerk's office to record, November 20, 1837, at 5 P.M., and recorded same day, in the record of mortgages in East Greenwich, book No. 4,"

&c. The Court held that this certificate was properly received in evidence in the circuit court.

It is a well settled rule, though a very technical one, that one partner cannot bind his co-partners by deed. And it is equally well settled that one partner may dispose of the personal property of the firm. One partner may bind his co-partner by deed, if he is present and assent to it. The seal of one partner, with the assent of the co-partner, will bind the firm.

Where a statute requires that mortgages on personal property shall be recorded in a book to be specially kept for the purpose, and says nothing as to the book in which mortgages on real and personal property shall be recorded, and in the conveyance the personal and real property is so blended as to be inseparable, to require a double record would seem to be an unreasonable construction of the statute. The record of the mortgage in the book kept for recording mortgages on real estate is within a fair construction of the Rhode Island statute.

The defendant in error, Cyrus Butler, in 1838 instituted an action of replevin against Barrington Anthony, the Marshal of the United States for the District of Rhode Island, to recover from him certain machinery and articles used in the manufacture of goods which had been the property of the Union Steam Mill Company, and which were claimed by the plaintiff under a mortgage alleged to have been executed to him by the Union Steam Mill Company on 20 November, 1837, to secure to him the payment of sixteen thousand four hundred and fifty-nine dollars loaned to the company by Cyrus Butler.

The defendant in the circuit court, the Marshal of the District of Rhode Island, ordered the taking of the goods under an execution issued out of the circuit court of the United States for that district on a judgment against Daniel Greene, William P. Salisbury, and Rufus W. Dickinson, which execution had been so levied upon

Page 38 U. S. 424

the goods as of said Greene, Salisbury, and Dickinson for the purpose of satisfying the debt and costs.

The cause was tried before a jury in November, 1838, and a verdict and judgment were rendered for the plaintiff. The defendant prosecuted this writ of error.

The matters of law arising in the case were presented on a bill of exceptions taken by the counsel for the defendant on the trial.

The bill of exceptions stated that the plaintiff in support of his title to the articles named in the replevin, produced a certain deed dated 20 November, 1837, executed by one Daniel Greene as agent for the Union Steam Mill Company, the said company being a corporation, conveying the property of the company, the articles mentioned in the replevin included, to the plaintiff on mortgage, and proved the execution of the deed, and produced the act of the Legislature of Rhode Island incorporating the company, and produced the record of the corporate proceedings of the company, having duly proved the said proceedings. The execution of the deed of 20 November, 1837, was in the following form. "Union Steam Mill Company, Daniel Greene [L.S.]." The plaintiff also produced and read in evidence a deed dated 18 May, 1837, from William P. Salisbury to Daniel Greene by which all the property of said Salisbury, in the Union Steam Mill Company was conveyed to Daniel Greene. The plaintiff also proved that Daniel Greene was and had been agent from the time of the formation of the company, and that the deed to the plaintiff was executed by him by and with the consent and authority of the company.

The plaintiff insisted that the deed of Daniel Greene was the corporate deed of the Union Steam Mill Company, and conveyed to him the articles mentioned in the replevin, and he further insisted that if it was not their corporate deed, it was sufficient to convey a valid title to the property to him, inasmuch as the said deed was made and executed by and with the consent of those who at the time were members of the company, and that Daniel Greene, as the general agent of the company, was authorized to convey the articles named in the plaintiff's writ.

The defendant objected to the deed as inoperative, the Union Steam Mill Company having had no corporate existence at the time it was executed, and the court decided that the corporate existence was not so proved as to allow the deed to be given in evidence as the deed of the corporation, but if inoperative as the corporate deed, it was sufficient and competent to convey the articles in the replevin to the plaintiff. To this opinion the defendant excepted.

The defendant also objected to the deed as it did not appear to have been recorded according to the law of Rhode Island regulating the recording of mortgages on personal property prior to the defendant's levy on the goods.

On the back of the deed was the endorsement of the town clerk of the place where the property was situated stating that the deed had been

"lodged in the town clerk's office, to record, November

Page 38 U. S. 425

20, 1837, at 5 o'clock, P.M. and recorded same day in the record of mortgages in East Greenwich, book No. 4, pages 49, 50 and 51."

The town clerk is the proper recording officer by the laws of Rhode Island.

The defendant's counsel objected to the sufficiency of the certificate as evidence that the deed was duly recorded, and produced evidence that there was a book kept by the town clerk in which mortgages of personal property only were recorded, and other mortgages which included real estate were recorded in other books kept in the office, and after recording the deed in the book of mortgages of real estate on 20 November, 1837, the deed was taken by him to the office of the town clerk, on 14 November, 1838, and was recorded in the book kept for mortgages on personal property. The court decided that the certificate was sufficient evidence that the said deed was duly recorded. The defendant excepted.

Page 38 U. S. 431

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