
    Lathly Rich versus Sylvanus J. Roberts.
    A mortgage of chattels, made by joint owners residing in different towns, is invalid as against other persons than the mortgagers, unless it has been recorded in each of the towns where the mortgagers reside.
    Where a creditor of one of the mortgagers has attached the mortgaged property, the holder of a second mortgage of the same property, which has been duly recorded, but not until after the attachment, cannot maintain an action against the attaching officer until the attachment is released or dissolved.
    Case against the defendant, as sheriff of the county, for alleged default of his deputy. Writ dated Oct. 18, 1860. The parties submitted the case to the Court upon the following statement of facts : — September 18th, 1855, Andrew R. Grant, of Frankfort, in the county of Waldo, and John Batchelder, of Oldtown, in the county of Penobscot, mortgaged to the plaintiff three pairs of oxen, one horse and two sets of double harness, to secure the payment of a note of §800, payable in nine months, which mortgage was legally recorded in Frankfort on the same day, but was never recorded in Oldtown. On Sept. 21st, 1855, Washington Carlton, then a deputy of the defendant, duly qualified, at-. tached and took into his possession said property, (and has retained the same to this time,) by virtue of two wilts of attachment in favor of Jonathan A. Cushing, one against said Grant and Batchelder, the other against said Grant, both returnable to the Supreme Judicial Court for Penobscot county, January term, 1856. Both writs were duly returned and entered; the one against Grant and Batchelder was entered " neither party,” and dismissed from the docket, January term, 1857, and the one against Grant is'still pending. The plaintiff demanded the property of Carlton, after the suit against Grant and Batchelder was dismissed, and before bringing the present action. October 24th, 1856, said Grant and Batchelder gave the plaintiff another mortgage of the same property, to secure the same debt as the former mortgage, which was duly recorded in Frankfort, Oct. 25, 1856, and in Oldtown, Jan. 16, 1857.
    
      It was agreed that the Court should x’ender judgment upon the foregoing statement, according to the legal rights of the parties, and, if for the plaintiff, assess the damages upon the depositions accompanying the statemexxt of facts.
    
      JSf. H. Hubbard, for the plaintiff,
    ax’gued that the attachment of the chattels, in the action against Grant and Batch-elder, having been dissolved, the shexiff should have given up the property at oixce. The pendency of the action agaixxst Grant is no bar to the px’esent action, as the first mortgage to the plaintiff was recorded in Fx’ankfort, where Grant resides, three days before the attachment of Cushing was made, which was all the statute required so far as Gx’ant was concerned, aixd was ample notice to the attaching cx’editor.
    
      O. H. Pierce, for the defendant,
    to the poiixt that Grant’s intei-est was legally attached, cited R. S., c. 81, § 59, et seq.; Paine v. Jackson, 6 Mass., 242; Gardiner v; Dutch, 9 Mass., 427.
   The opinion of the Court was dx’awxx up by

Kent, J.

In a former case betweexx these parties, we decided that the mortgage to the plaintiff was invalid as agaixxst other persons than the mortgagers, because it had not been recorded ixx each town where one of the mox’tgagers resided. Rich v. Roberts, 48 Maine, 548. ■ The plaintiff in that suit became nonsuit, — and this new action has been instituted, and comes before us on an agreed statement of facts, somewhat different from the former case. It xxow appears that the attachixxent made on the writ against both the mortgagers has been released. The sheriff, therefore, has no longer any right to hold, or to seize for .sale this property by reason or by vix’tue of that attachmeixt. But it is also agreed, that the action agaixxst Graxxt alone is still pending, and the attachment oxx that wxfit is still in force. The officer, on that writ, was authorized to attach, aixd did attach and hold the undivided intex-est of Grant.

It is well settled law that when personal property, owned by tenants in common, is attached in a suit agaixxst one of them, the officer is entitled to the possession and control of the whole, during the pendency of the attachment, although, on the levy of the execution, he sells only the share or interest of the judgment debtor, and the purchaser acquires only the right of a part owner. Reed v. Howard, 2 Met., 36.

The provision of the statute, c. 81, § 59, that a part owner who is not sued may have the property delivered to him on giving bond, recognizes the principle above stated.

In this case, the mortgage, not being recorded according to law, is not valid against subsequent attaching creditors, but is valid against the mortgagers. When the lien created by the attachment is released or dissolved, the right of the mortgagee revives, and he may assert his claim and title to the property. But so long as the officer has a right to retain the property, he cannot bo liable to the mortgager — in an action for its value.

If judgment is recovered in the suit now pending against Grant, the officer may proceed to seize and sell his undivided interest, and, in case he does so legally, the purchaser will take Grant’s place, and become a joint owner with the plaintiff. If that attachment against Grant should be released or dissolved, then the officer may be bound to restore the property, or account for its value to the plaintiff as owner. However this may be, we do not see that the officer can be liable in this suit, as he appears as yet to have done nothing which he was not by law authorized and bound to do.

Plaintiff nonsuit.,

Bice, Appleton, Cutting, Davis and Walton, JJ., concurred.  