29 Barb. 518 | N.Y. Sup. Ct. | 1859
The action was not prematurely brought; and the judge properly refused to charge the jury that the plaintiff could not recover, because his mortgage was not due at the time the action was commenced. This court decided, at the October term, 1846, at Bochester, in Balcom v. Clarke and Johnson, (MS. opinion, per Beardsley, J.) that where personal property, which is mortgaged, has been wrongfully converted, an' action to recover its value may be maintained by the mortgagee prior to the time the mortgage becomes due, if there is a clause in the mortgage which authorizes the mortgagee to take possession of the property and sell it, to satisfy the debt secured by the mortgage, at any time he shall deem himself insecure. That case was correctly decided, for the reason that such a mortgage transfers the title to the property to the mortgagee, at the time it is executed; and he has the right to the possession of it at any time he deems himself insecure. And an action for the conversion of personal property, formerly called trover, can be maintained by one who has the right to the possession at the time of the conversion. (1 Cowen’s Tr. 284, 2d ed. Shuart v. Taylor, 7 How. Pr. R. 251.) When the plaintiff took his
Mason, Balcom and Campbell, Justices.]
The judge erred in refusing to charge the jury that the plaintiff was not entitled to recover an amount exceeding what was due on his mortgage. It was decided in Spoor v. Holland, (8 Wend. 445,) that in trover by a party having a special property in goods, against one claiming under the general owner, the plaintiff is entitled to recover only the value of the special interest. And this rule is well settled. (See 21 Wend. 300; 7 Cowen, 670; 3 Denio, 33.) The defendant in this action is not a mere stranger to the question of title to the property in dispute; for he held a mortgage on it, older than the plaintiff’s, from the original owner, under whom the plaintiff claims title to it. Satisfy the plaintiff’s mortgage, and his claim to the property will he extinguished. His interest in the property should he regarded as special in this action, and that of the defendant general. This court' has held at general term in this district, in Wood v. Combs, (MS.) and in other cases, that the mortgagee of personal property will not he permitted to recover beyond the sum due upon his mortgage, in. an action against a creditor of the mortgagor, who seizes and sells the mortgaged property, by virtue of an execution against the mortgagor while he has the possession, after the mortgage becomes due. (See 3 Denio, 33.) Those decisions were based upon the principle that holds such a levy and sale good as against the mortgagor.
The above mentioned error of the judge entitles the defendant to a new trial. I will not, therefore, discuss any other question in the case.
The verdict must he set aside, and a new trial granted costs to abide the event.
Decision accordingly.