129 A. 229 | Vt. | 1925
This is an action of trover. The defendant had judgment below on a verdict directed at the close of all the evidence and the case comes here on plaintiffs' exceptions. These *488 exceptions are to the admission of evidence offered by the defendant, to the exclusion of evidence offered by the plaintiffs in rebuttal, and to the granting of defendant's motion for a verdict.
At the close of plaintiffs' evidence, defendant filed a motion for a directed verdict on grounds hereinafter stated; the same was overruled and he was allowed an exception, but later proceeded with the trial. By so doing he waived this exception.Hobbs Son v. Grand Trunk Ry. Co.,
When the plaintiffs rested, their evidence tended to show that in the summer of 1920 they sold the property in question to George Provencher and Alphonse Beliveau and took in part payment therefor a promissory note for $3,100.00, dated June 3, 1920, signed by both vendees, which note was payable $500.00 on or before three months from date, $100.00 on or before one year from date, and $100.00 on or before June 3 each year thereafter until said note was fully paid with interest annually at five per cent.; that to secure the payment of said note Provencher and Beliveau, on the date thereof, executed and delivered to the plaintiffs a chattel mortgage on the property in suit; that later Provencher and Beliveau sold said property to one Blais, who in turn sold it to one Poulin; that early in October, 1922, Poulin sold the property to the defendant as executor of one C.W. Bryant; that on October 10 the defendant sold and delivered possession of the same to one Rondeau; that at the time of the last sale the condition of plaintiffs' mortgage from Provencher and Beliveau had been breached by the nonpayment of the installment and interest due June 3, 1922; and that the property was then worth approximately $1,700.00.
More than this, it also appeared from the plaintiffs' evidence, namely, from their said mortgage, that at the time the same was given there was an outstanding prior mortgage on the same property for $10,400.00 given by the plaintiffs to the said C.W. Bryant, which Provencher and Beliveau assumed and *489 agreed to pay; and it appeared, too, that in what the defendant did concerning such property he was acting as executor as aforesaid, and under and by virtue of the latter mortgage and also under his purchase from Poulin.
The plaintiffs' evidence standing thus, the sufficiency thereof was challenged by the motion last referred to. The grounds of that motion, here material, may be summarized thus: The evidence shows that at the time of the alleged conversion the defendant was lawfully in possession of and had legal title to the property in question as executor of the first mortgagee; that that mortgage had not been paid; that no tender or demand is shown, and that such title as the plaintiffs have is purely equitable and their remedy is by way of bill to redeem and not in trover.
We take no time in considering plaintiffs' rights under the Provencher and Beliveau mortgage since it is not apparent how they thereby acquired any additional rights in the property as against their prior mortgage to Bryant.
Although plaintiffs' evidence showed that defendant held a mortgage on said property under which, there being no agreement to the contrary, he was entitled to possession of the property(Mason v. Sault,
After the motion was overruled, defendant offered in evidence a certified copy of a decree of foreclosure of a real estate mortgage given by the plaintiffs to C.W. Bryant to secure the payment of the same note described in their chattel mortgage to Bryant here in issue entered at the March Term, 1922, of the Orleans county court of chancery, for the purpose of showing the payments overdue and owing on the note at the time those proceedings were commenced; that such decree was obtained; the time allowed for redemption; and the value of the real estate fixed by the chancellor. To this offer plaintiffs' counsel said: "I have no objection to the decree going in for the purpose of showing that there was a decree of foreclosure obtained at that *490 time and for the purpose of showing what was due at that time upon the note, but I do object to the decree being used for the purpose of being any evidence of the value of the real estate whatever."
Considering this evidence for a purpose for which it was virtually conceded to be admissible, it shows plaintiffs' failure to meet their payments on the note secured by the mortgage in issue, and consequently shows that the condition thereof was broken before the sale to Rondeau. Thus the link that was missing at the time the defendant filed his first motion was supplied.
With this element established, we come to the question raised by defendant's motion for a directed verdict filed at the close of all the evidence, namely, whether a mortgagee who is in possession of the property is liable in trover to the mortgagor, if he sells it at private sale after condition broken. This question, we think, must be answered in the negative. The law is well settled, in this State that when the condition of a chattel mortgage is broken, title to the property vests absolutely at law in the mortgagee. Speaking of the effect of a chattel mortgage inMason v. Sault, supra, we said: "It passed the general property to the plaintiff [the mortgagee]; and if the condition of the mortgage should not be duly performed, the whole title would then vest absolutely at law in the plaintiff subject to the defendant's right in equity to redeem."
It is not apparent how a mortgagor can maintain trover against a mortgagee for property, the "whole title" of which is vested "absolutely at law" in the latter, since the plaintiff to prevail in this form of action must show actual possession of the thing converted, or a property in it, either general or special, with the right of immediate possession. Hurd v. Fleming,
The plaintiffs insist, however, that a mortgagee is liable in trover if he sells the mortgaged property in any other way than that provided by statute, G.L. 2803 et seq., and rely uponCalkins v. Clement,
But the purpose of the statute seems plain when we have in mind certain questions that were before this Court shortly prior to its enactment, and the language of the original act. In Blodgett
v. Blodgett,
The obvious intention of the Legislature was to fix a time certain within which a person entitled to redeem might act, in lieu of the "reasonable time" rule announced in the cases last cited, and provide a method for a speedy determination of his rights, as well as those of the mortgagee, in the property.
Whether the method provided may be an exclusive remedy in any circumstances we do not decide. It is enough for *492 the purposes of this case to say that a mortgagee in possession who, after condition broken, sells the property in some other way is not liable to the mortgagor in trover for so doing. This necessarily follows from the fact that such mortgagor has no title at law, either general or special, in the property, neither has he possession or right of possession thereto. Such title as he has is purely equitable (Mason v. Sault) and can be availed of only in a court of equity. It follows that the action of the lower court in granting defendant's motion must be sustained. Since this disposes of the case, other exceptions saved need not be considered.
Judgment affirmed.