
    John Esson vs. Silas P. Tarbell.
    An instrument, in form an indenture, executed by one party only, if it contains tne requisite clauses to pass the property described, will operate as a deed poll.
    The record of a mortgage made and certified by a subordinate officer in the customhouse at Halifax, Nova Scotia, for the comptroller, is valid under St. 8 & 9 Viet, c. 85, § 7.
    A., the owner of a vessel, resident in Nova Scotia, mortgaged her to B., also resident there, who had his mortgage duly recorded, under the laws of the province, at the custom-house, and a memorandum thereof indorsed on the register of the vessel, these acts, by the lex loci, making B. the owner of the vessel so far as was necessary to give him security for his debt; and it was held, that he had thus acquired the possession of the vessel sufficiently to enable him to maintain reple-vin against an attaching creditor here.
    The action of replevin may be maintained, under the statutes of this commonwealth, for an unlawful detention, although the original taking was lawful.
    This was an action of replevin, tried before Perkins, J„, in the court of common pleas, from which it came to this court by exceptions. It was brought to recover the British vessel “ Inquisitive,” which was attached in Boston, together with other property, by the defendant, a deputy sheriff, on a writ in favor of Copeland and others against James Edward Croucher, January 9,1849. The replevin writ bore date February 8,1849, and was served February 20,1849.
    The plaintiff offered in evidence a paper purporting to be a mortgage from Croucher to Esson, dated December 23, 1848; the certificate of registry of the vessel, with a memorandum of such mortgage indorsed thereon; a notice of the mortgage given to the defendant, January 13, 1849, signed by R. Lincoln & Company; and one dated January 27, 1849, signed by John Esson, by Sohier & Lowell, his attorneys.
    The plaintiff offered evidence that, on the 23d of December, 1848, Edward F. Stewart, whose name appears as certifying to the certificate of registry and the recording and indorsement of the mortgage, was a clerk in the office of customs at Halifax; that, at that time, a Mr. Trull was commissioned as collector of that port, but had not arrived; that Stewart had been appointed provisionally, but had been deprived of his appointment, December 1, 1848. The plaintiff claimed that Stewart acted rightly, in executing the certificate affixed to the documents above mentioned, under and by virtue of the St. 8 & 9 Viet. c. 85, § 7, and Si. 8 & 9 Viet. c. 93, § 37; and also offered evidence that Stewart was in fact acting as comptroller, at the time of such certificate of registry, recording and indorsement of the mortgage, and the statement of Stewart that he was fully authorized by the above statutes, and by the practice under them; but gave no other evidence of his authority except such statement.
    The plaintiff, to show the amount due under his mortgage, at the time of his demand on the officer or attaching creditor, offered the statements .and stipulations respecting the same contained in the. mortgage, and also the answers of S. L. Shannon, attorney of Esson, to interrogatories, that a part of the consideration of the mortgage, was a liability of Esson for a debt due from Croucher to a third party.
    The mortgage was never recorded here, and Croucher came here as master of the vessel. The plaintiff offered no other evidence, except on the question of damages.
    The specification of defence raised the question of property and the right of possession.
    The defendant contended that the plaintiff could not recover, because the mortgage was not completely executed, being in form an indenture, signed by only one party, and was not recorded according to the. British statutes referred to, such statutes giving no authority for Stewart’s acts; that, under St. 8 & 9 Viet. c. 89, §§ 45, 46, relied on by the plaintiff, the mortgage did not pass the title without delivery of possession, and, without delivery, it was to be presumed fraudulent by British law; that it would not pass title against the defendant, holding under a valid attachment against Croucher, in this State; that the plaintiff could not recover without proving a demand on Croucher, of the amount due on the mortgage, and without proving the amount due on the mortgage, at the time of the demand on the defendant; and that there was no sufficient evidence thereof to go to the jury, unless the plaintiff proved that he had paid such liabilities for Croucher; and that, under such circumstances, the mortgage. with the other evidence above referred to, was not sufficient evidence to go to the jury, of the debt due; that the plaintiff could not maintain this action, as possession was not delivered to Esson; that, from the mere fact that Croucher was in command, it was not to be presumed that he acted as agent of Esson, but he might hold as owner; and that, by the terms of the mortgage, the plaintiff was not entitled to such possession as would enable him to maintain this suit; and the defendant requested the judge so to rule.
    But the judge, in order to facilitate the settlement of all the questions of law on which the case depended, and also of obtaining the opinion of the jury on the points to be submitted to them, made a formal ruling against the defendant on all the above points, except that the plaintiff was bound to prove the amount due on his mortgage; and instructed the jury that, on this evidence, if they believed the demand of January 27, 1849, referred to, contained a true statement of the amount then due from Croucher to the plaintiff under the mortgage, there was no legal impediment to a recovery by the plaintiff; and directed the jury to find a verdict for him, and assess the damages, and that it made no difference whether Esson or Croucher was in actual possession ; but the judge, by consent of parties, requested the jury to find, also, whether Croucher had ever, at any time, delivered the actual possession to Esson, or had himself remained in possession up to the time of the taking and detention for which this action of replevin was brought.
    The jury thereupon found for the plaintiff, and assessec. damages at one cent. They stated, upon inquiry by thi judge, without objection by either party, that they found thai Croucher was in possession up to the time above mentioned. The defendant alleged exceptions to the above rulings.
    
      G. M. Ellis, for the defendant.
    
      W. Solder, for the plaintiff.
   Shaw, C. J.

This is an action of replevin, brought by the plaintiff, an inhabitant of Nova Scotia, against the deputy sheriff, Mr. Tarbell, to regain possession of a British vessel called the “ Inquisitive,” which was attached by the defendant, on a writ brought by Copeland & Co., against James Edward Croucher, the master and mortgagor of the vessel, January 9, 1849. The vessel was replevied February 20, 1849.

The plaintiff claimed the vessel, under a deed of mortgage alleged to have been made by Croucher to himself, at Halifax, N. S., December 23, 1848, to secure the payment of ¿£900, Halifax currency; the deed of mortgage pm-ported to be signed, sealed, and delivered in presence of witnesses, to be recorded in the custom-house at Halifax, and a memorandum thereof entered on the original register of said vessel, on the same 23d December, 1848. Croucher was the master of the vessel, and came here in her as master.

The plaintiff, as mortgagee, after the attachment of the vessel made by the defendant, gave him notice of his mortgage, and of the amount due thereon, and demanded the same of the. defendant. No money was paid or tendered to the plaintiff, pursuant to this demand. This question of the amount due to the plaintiff, and the demand thereof, was left to the jury, who found for the plaintiff.

Several exceptions were taken on the trial to the admission of evidence, and to the instructions under which the cause was committed to the jury, by the judge before whom the cause was tried. The exceptions were allowed, and it now comes before the court on these exceptions.

1. The first is, that the mortgage appears to be in the form of an indenture, but is executed by the mortgagor alone. A deed containing all the requisites of a conveyance, duly executed and delivered, is valid to bind the grantor and pass the property, although in- the form of an indenture, and not executed by the grantee. It operates as a good deed poll. It is understood to be the most common form of conveyance and mortgage of real, as well as personal estate, in many of the states of the Union.

2. An objection was taken to the mortgage under which the plaintiff claims, on the ground that it was not duly recorded, indorsed on the register, and otherwise authenticated by the comptroller of the customs, according to the British navigation and registry acts.

It was, in fact, recorded and certified by Edward F. Stewart, for the comptroller; and the evidence shows that, at the time of this registration, a comptroller of the customs for the port of Halifax had been appointed but was not then present, that said Stewart was chief clerk, and in the absence of the comptroller was the principal officer of the customs at the port of Halifax.

The mortgage being made in Nova Scotia, if good according to the laws of that place, must be considered as good here.

The law of Nova Scotia does require both that transfers of vessels, and also mortgages, shall be recorded, and the requisite certificates made by the collector and comptroller of the port, Stat. 8 & 9 Vict. c. 89, § 45; but a subsequent act, Stat. 8 & 9 Vict. c. 93, § 37, provides, that every act to be done by the collector and comptroller in any of her majesty’s possessions abroad, may be done by the collector, and any such act, done by the collector, or other principal officer of the customs, shall be as valid and effectual.

So in an analogous case, 8 & 9 Vict. c. 85, § 85, providing for the general management, &c., certain oaths are to be taken before the collector or comptroller, or before the persons acting for them respectively.

It recognizes the power of substitution. The evidence is decisive, that at the time this mortgage was recorded at the custom-house at Halifax, Stewart was the principal officer of the customs at Halifax. This testimony is furnished by Mr. Stewart himself, and Mr. Shannon, a lawyer, who testifies that such substitution is conformable to uniform usage, and is sanctioned by law. We are therefore of opinion that there is no foundation for this objection.

3. The next objection is, that by this mortgage no property in the vessel vested in the plaintiff, so as to enable him to maintain replevin against the defendant.

A mortgage deed, if valid, vests the property and title, as> between the owner and the mortgagee, in the latter; it is a de-' feasible title, upon the performance of a condition subsequent-but still it vests the property in the mortgagee.

This mortgage appears to have been valid by the laws of Nova Scotia. The British registry acts, expressly recognize and regulate the right of mortgaging vessels. Stat. 8 & 9 Vict. c. 89, §§ 45-6.

It is to be noted in the record, and in the minute entered on the certificate, that the transfer is given as a security for a debt,

That the right of the mortgagor, to the possession and use of the vessel, shall not be superseded, and to exempt the mortgagee from liability, for the supplies and expenses of such vessel, the act cited further provides, that no such mortgagee shall be deemed owner,' except so far as may be necessary for the purpose of rendering such vessel available by sale or otherwise, for the payment of the debt, &c.

Sect. 46 provides, that when such transfer as security, by way of mortgage, has been duly registered, the right of the mortgagee shall not be affected by the bankruptcy of the mortgagor, although such bankrupt may have had the possession, order, and disposition of such vessel, and been the reputed owner thereof.

This seems to be quite decisive. The right of mortgaging property results from ownership. It is a conditional conveyance. The statute does not confer this light, but recognizes and regulates it. The mortgagee shall not be deemed owner, except, &c. Now this exception is equal to an express enactment, that, so far as it is necessary to give security to the debt, he shall be deemed owner. So, when the mortgagor becomes bankrupt.

It is held in Massachusetts, as the rule at common law, that a mortgage transfers the property, and, as between mortgagor and mortgagee, vests the property in the mortgagee. To I he extent of reclaiming the vessel, when attached by a creditor of the mortgagor, it is necessary to the secruity of the debt that the mortgagee be deemed owner of the vessel, and have a right to assert that claim as owner, against the officer and creditor thus attaching.

4. It is urged that replevin cannot be maintained, because the mortgagor had no possession nor right of possession.

The general rule certainly is, that the right of possession follows the right of. property when not specially restrained by compact, as it is not in this mortgage.

It is true, that at common law, to make a valid sale, as against third parties, possession must accompany and follow the conveyance. But” this only applies to absolute conveyances, when the retaining of possession, by the vendor, being contrary to the avowed object of the sale, is regarded as a badge of fraud. But this rule is not applicable to mortgages, where the possession of the mortgagor is perfectly consistent with all the apparent purposes of a conveyance for the security of a debt.

But the provision of the British statute in force in Nova Scotia, where this mortgage was made, already cited, implies, that the vessel is to remain in the possession of the mortgagor, and provides that this circumstance shall not impair or affect the right of the mortgagee.

' In the present case the provisions of law appear to have been complied with, so that the mortgage was valid.

5. The next ground is, that although this mortgage was valid in Nova Scotia, by the English law, as between the parties, it would not be valid against the defendant. The reason relied on is, that possession of personal property is recognized by universal law, as one proof of title and evidence of property, and that this will not be controlled by statute, which cannot operate extra-territorially.

~We think a satisfactory answer is, that whatever operates as proof of property by the law of the place where it is, and where it is acquired, is proof of property everywhere. It establishes a right, a personal right, recognized everywhere. Possession is proof of property, both within the territory where it is acquired and elsewhere, but it is primd facie proof of property only, subject to be controlled by rebutting proof.

Then proof which shows that, although, when the vessel left the bounds of Nova Scotia, the master and former owner had the possession of her, yet, that by a transfer binding on him, and made conformably to the laws of the place where the property was when the transaction took place, and where the parties lived, by means of which the mortgagee had acquired a superior title, rebuts and controls the primd facie proof resulting from possession. This is not giving the statute an extra-territorial-operation; it operated within the territory to transfer the title, so that when the vessel left the territory, the plaintiff had a valid qualified title as mortgagee.

Besides, the question here affects remedies. The defendant is a mere nominal party, an officer acting in behalf of the attaching creditor, who is contesting the right of the plaintiff as mortgagee. The attaching creditor claims a lien by force of his attachment, and the law authorizing it; the plaintiff claims a lien by contract, by a mortgage, valid in the place where made, and binding on the vessel, coming here subject to it. Both depend on the lex fori, the law of Massachusetts. Both being equally recognized as valid liens, the prior in time has the preference in right.

It is further insisted, that the plaintiff could not go on in this action of replevin, because there was no proof of his debt, and because he had no right of possession.

We understand that the question as to the existence and amount of the debt, was left to the jury and found- for the plaintiff.

In regard to the possession, we have already suggested that the right of possession follows the right of property. But further, supposing the attaching creditor had a right to attach the property subject to the plaintiff’s mortgage, and so that the original taking was not tortious ; the answer is, that as the plaintiff is pursuing a remedy under the laws of Massachusetts, he must take such remedy as her statutes afford. The right to attach mortgaged property is conditional. If the attaching officer has notice of the mortgagee’s debt, and it is demanded of him, an'd not paid within a time limited, Rev. Sts. c. 9, §§ 78, 79, the casus fcederis does not exist, and the statute expressly declares that the property shall be re stored to the mortgagee.

If it be argued that the word “ restored ” implies that the property, at the time of the attachment, was taken out of the possession of the mortgagee, we think one answer is, and the law assumes, that it is taken out of the constructive possession of the mortgagee. ■ But another, and perhaps more satisfactory answer is, that “ restore,” by the obvious meaning of the context and general tenor and object of the law, has a larger and more generic meaning, equivalent to the direction that it shall be surrendered and delivered to the mortgagee, from whom it is detained by the officer without law and against right. If there be any question respecting the right of possession as between the mortgagor and mortgagee, it would not be affected by such a surrender.

6. It was further insisted by the defendant’s counsel, that trespass and not replevin was the proper action in this case. It has been decided in several instances, that where personal property, under mortgage, is attached, and afterwards, when the mortgagee has given notice of his debt, and made his demand, but neither the officer nor attaching creditor pay the mortgage debt, although the original taking was lawful, trespass will lie. This probably proceeded on the doctrine, that an officer, by abusing or erroneously exercising his authority, becomes a trespasser ab initio. But if trespass would lie in this case, it does not follow that replevin will not; on the contrary, in general, when trespass will lie replevin will also. But by our statute replevin will lie, for a wrongful detention only; and here, though the original attachment might have been lawful when made, the subsequent detention was wrongful, and replevin is the proper remedy.

Judgment for the plaintiff.  