By the Court, Marvin, J.
The instrument executed by Van Vechten to Mrs. Hawkins was not a mortgage. It, together with the delivery of the marble, constituted a pledge only. There are no words of sale in the instrument, nor any words from which it can be inferred that he intended to transfer to her the title to the property, either absolutely or conditionally. It contained, when accompanied by the delivery, all the requisites of a pledge. The property was delivered in se*493curity for a certain account, and if Van Vechten did not return by a certain time, to pay the demand, then Mrs. Hawkins was to dispose of the marble to pay the account. Here was a power given to the pledgee to make the amount of the account by a sale of the property publicly or privately, fairly conducted, not by an absolute appropriation of the property to herself. A 1 mortgage is a sale of goods, with a condition that if the mort- l gagor performs some act it shall be void. If the condition is ¡ not performed the goods become the absolute property of the mortgagee. (8 John. Rep. 96. 7 Cowen, 290. 9 Wend. 83.) Before" the happening of the contingency, upon which the title ■ is to be defeated, or become absolute, the possession of the goods may be in the mortgagor or the mortgagee. In the case of a pledge, the property must be delivered to the pawnee. This is of the very essence of a. pledge. )The case of Langdon v. . Buel, (9 Wend. 80,) cited by the counsel for the defendant in '' error, is not like this case. There was no delivery in that case, and the doubt was whether the language of the instru- ; ment created a mortgage. It recited the giving of notes for the property previously sold by the mortgagee to the mortgagor, and then, for the purpose of securing the payment of the notes, it declared, “I hereby pledge and give a lien” upon the property. It provided that the property should remain in possession of the mortgagor until the time for the payment of the notes, and in case they were not paid, then the mortgagee might take the property. This was held to be a mortgage. The word pledge was not used in a technical sense; and on the failure to pay the notes, Langdon, the mortgagee, was at liberty to take the property absolutely, not by way of security as a pledge.
A pawnee o'f goods does not acquire an absolute title simply by a failure of the pawnor to pay the debt or redeem the prop- 1 <erty at the time specified. His interest is a special property to retain the goods for his security. There is no forfeiture ; until the pawnor’s rights are foreclosed. (Cortelyou v. Lansing, 2 Caines’ Cas. in Error, 200. 8 John. Rep. 97. 10 Id. 472. 12 Id. 146. 1 Powell on Mort. 3. 2 Kent’s Com. *494577, 5th ed. 4 Id. 138.) It follows that the plaintiff below had only a special property in the marble, as a pledgee, not an absolute property as a mortgagee after forfeiture; and under the circumstances disclosed, she was only entitled to recover the amount of the account to secure the payment of which the marble was pledged. The title of Brownell is now attacked on the ground of the uncertain description of the property in his mortgage. It is alleged that the mortgage is void for uncertainty. It is not necessary to consider this question with a view of ascertaining the effect upon the rights of the parties as to the amount of recovery; for however this may be, the defendant connected his title or right with Wm. Van Vechten, the pledgor. He delivered a part of the marble to Brownell. He consented to his taking it, and Brownell thereby acquired all his rights. If Brownell had been a naked trespasser, acting in violation of the rights of Van Vechten, then the plaintiff, as the bailee of the property, would be permitted to recover the full value of the property, and after indemnifying herself she would hold the remainder of the recovery in trust for Yan Yechten, the pledgor. But where the defendant connects himself, in an action of trover, with the general owner, as he has in this case, the plaintiff can only recover to the extent of her special interest, in the property. (Spooner v. Holland, 8 Wend. 445. Ingersoll v. Van Bokkelin, 7 Cowen’s Rep. 670 and note.)
The court erred in rejecting the evidence offered, to show the amount owing by Van Vechten to the plaintiff, and also in the instruction to the jury.
The judgment of the common pleas must be reversed and a venire de novo awarded.
Judgment reversed.