30 A.2d 278
No. 3384.Supreme Court of New Hampshire Strafford.
Decided January 5, 1943.
A petition for a declaratory judgment cannot be maintained where the plaintiff has a plain and adequate legal remedy for determination of the question presented by his petition. Upon a stipulation of the parties, and accompanying such petition, that “the pleadings may be deemed such form of action as will determine the issue” the court may consider the petition as amended by substitution of such adequate legal remedy. The memorandum of a conditional sales agreement not signed, though sworn to by the vendor, is void against a subsequent attaching creditor without actual notice of the conditional agreement.
PETITION, for a declaratory judgment to determine whether an attachment of an automobile in a suit against its owner is subject to a conditional sale of it made by him when the agreement of sale, assigned by the lienholder to the plaintiff, was duly recorded prior to the attachment and the attaching creditor had no actual notice of the agreement, but the memorandum of agreement was by inadvertence not signed by the owner, although he signed the affidavit accompanying it. After the attachment the plaintiff obtained its release by furnishing a bond to be enforceable if the plaintiff’s interest should be decided to be held by the attachment. Transferred without ruling by Blandin, J.
Cooper, Hall Grimes, for the plaintiff.
William G. McCarthy, for the defendant.
PER CURIAM.
Available remedy by suit upon the bond results in impropriety of the procedure of a petition for a declaratory judgment. Lisbon c. District v. Lisbon, 85 N.H. 173; Baker v. Goodale, 85 N.H. 561; Reynolds v. Chase, 87 N.H. 227, 229; Young v. Bridges, 86 N.H. 135, 136; Coleman v. School District, 87 N.H. 465, 472. However, the parties have agreed that “the pleadings may be deemed such form of action as will determine the issues.” Accordingly, the petition becomes amended by an action of debt on the bond brought by the defendant against the plaintiff.
Page 294
The statute (P. L., c. 216, s. 27) requires that the lien of a conditional sale agreement, to be valid against attaching creditors without actual notice, must be established by a memorandum signed by the owner. As another requirement (Ib., s. 28), an affidavit of the honesty of the lien must be signed by both the owner and lienholder.
It has been held that subscription to the oath by both parties is indispensable to preserve the lien against attaching creditors without c. Corp. v. Company, 84 N.H. 348, 349.
The requirement that the memorandum of sale be signed by the owner is equally demanded. “. . . the statute . . . must in general be strictly complied with” (Churchill v. Demeritt, supra, 111), “for it is the intent of the statute `that an inspection of the record should inform all parties whether the memorandum `had been legally executed'” (General Motors c. Corp. v. Company, supra, 349). Legal execution of the memorandum is such as the statute prescribes to make it legal. The plaintiff was chargeable with notice of the law when it took its assignment from the lienholder and hence with notice that the memorandum was executed without compliance with the law.
Debt on the bond may be maintained.
Case discharged.