Opinion
Decided March, 1879.
A question of law, once decided at the law term, is not reconsidered in the same case except on a motion for rehearing.
The title of a vendee of a chattel, in a sale void as to creditors of the vendor for want of a change of possession, is invalid against a subsequent mortgage of the chattel by the vendor to one having no notice of the sale.
A mortgagee is a creditor of the mortgagor, and to the extent of his claim a purchaser, and as such is entitled to the same protection from secret equities and trusts, of which he had no notice, as any other bona fide purchaser.
TROVER, for a horse, being the action reported ante, p. 293. The evidence there reported was again introduced at the second trial. Gray, and his mortgagee, and the attaching creditor agreed in writing that the officer who attached the horse should sell it by auction, and apply the proceeds to the payment of the mortgage debt, and the balance to the payment of the debt of the attaching creditor. In accordance with this agreement, but in his official capacity, and not as agent of the parties to the agreement, the officer sold the horse, and the defendant bought it. The proceeds being less than the mortgage debt, were paid by the officer to the mortgagee. The plaintiff contended that the defendant derived his title from the mortgagee, and had not the right of an attaching creditor to contest the plaintiff's title. The plaintiff desired to submit to the jury the question of fraud alleged by the defendant in Gray's sale to the plaintiff. The court ordered a nonsuit, and the plaintiff excepted.
Fletcher and Twitchell, for the plaintiff.
Ray, Drew Jordan and Heywood, for the defendant.
A question of law once decided at the law term is not reconsidered in the same case except on a motion for a rehearing. Bell v. Lamprey, 58 N.H. 124. The question upon which the plaintiff desired to take the verdict of the jury was determined adversely to the plaintiff upon a former trial (ante, p. 293), and the evidence being the same as at the former trial, the request was properly denied.
The plaintiff's title being invalid as to Gray's creditors was invalid against the defendant, who derived his title from an attachment and sale of the horse by a creditor of Gray. The legality of the sale was not affected by the assent of the mortgagee, nor by the fact that the property sold at a sum less than the amount due upon the mortgage. If the defendant derived his title under the mortgage, it was valid against the plaintiff. A mortgagee is a creditor of the mortgagor (2 Hilliard on Mort. 85), and, to the extent of his claim, a purchaser, and is entitled to the same protection from all secret equities and trusts, of which he had no notice, as any other bona fide purchaser. Jones on Mort., s. 710.
Exceptions overruled.
DOE, C. J., did not sit: the others concurred.