4 Mich. 295 | Mich. | 1856
By the Court,
The principal questions presented for our decision by this case, are:
Had the mortgagor any interest in the property sold which was liable to levy and sale on execution ?
The rights of parties to chattel mortgages were much discussed in the case of Tannehill et al. vs. Tuttle, decided at the last term of this Court, and reported in 2 Gibbs M. R., 105. In that case, we recognized the principle that, the general title being in the mortgagee, he is entitled to immediate possession of the property, to hold it until condition broken, unless the parties otherwise stipulate m the mortgage ; and that without such agreement, the possession of the mortgagor (if suffered to retain the property) is deemed the possession of the mortgagee, so that he may reduce the property to possession at any moment, and may maintain trespass, or trover, or replevin, as the case may be, for any intermeddling with, or taking of the property by a third party, while in the possession of the mortgagor, equally as though such possession were actually in himself.
We do not now propose to review those propositions. They are not denied by the counsel in this case ; but it is insisted fpr the plaintiffs, that by the terms of this mortgage, it was expressly agreed that the mortgagor should retain possession of the property, until the amount thereby secured should become due and payable ; and, therefore, he had an interest which was liable to seizure and sale on execution.
The mortgage contains the following clauses, viz.: “ To have and to hold all and singular the said goods and chattels herein granted and sold, etc., unto the said party of the second part forever, said goods and chattels now remaining and continuing in the possession of the said party of the second part, in the town of Columbia.” It then provides, that if the amount to be paid is paid in eleven months from date, the mortgage shall be void; but in case of default, or “ if the said party of the first part should sell, assign or dispose of, or attempt to assign, sell or dispose of the whole or any part
The levy and sale of the property by the constable occurred before condition broken, and when the property was in the possession of the mortgagor. Was the stipulation contained in the mortgage such as to give to the mortgagor a right to the possession of the property for any definite period? If it was not, the property was not subject to levy and sale on execution.
In Welch vs. Whittemore (25 Maine R., 86), plaintiff’s mortgage was not due when the property was attached by the defendant, . The mortgage expressly authorized the mortgagor to retain possession of the property until default in payment, according to its tenor, but it contains a stipulation that, if tbe property should be attached by the creditors of the mortgagor, it should be lawful for the mortgagee to take immediate possession. It was decided, “that as tbe right to the immediate possession of the property was m the mortgagee, in the absence of any agreement to the contrary, that right was limited no farther than the intention of the parties, as manifested by the instrument required.” “That the attachment and mortgagee’s rights were simultaneous.” The Court say: The law will not say that the attachment is legal, when it can give no right to the officer who makes it to hold possession, and could create no lien for the security of the debt of tbe creditor.
In the case of Ferguson vs. Thomas (26 Maine R., 499), plaintiff claimed property by virtue of a chattel mortgage, payable in one year. The property was left in the possession of the mortgagor, and before condition broken, it was attached
All those authorities, and many more cited in the case of Tannehill vs. Tuttle, maintain the doctrine that an officer cannot levy upon personal property which is mortgaged, whether in possession of the mortgagor or mortgagee, even if the mortgage is not due, unless the mortgage contains am express stipulation permitting the mortgagor to retain posses
The duty of the constable was plainly defined, and if he executed it, he, and all by whose direction he acts, are trespassers. (Kink vs. Manning, Comyns R., 619; Waddell vs. Cook, 2 Hill, 47; Melville vs. Brown, 15 Mass. R., 82; Burrall vs. Acker, 23 Wend., 609.)
It appears from' the record, that the mortgage was duly recorded in the office of the Town Clerk a considerable time before the levy of execution by the constable. The constable had constructive notice of the mortgage at the time he levied. The levy of an execution upon growing grain is usually considered a desperate remedy, and in such cases the officer should examine the record or files of the Town Clerk, for incumbrances which he perhaps might well apprehend to exist, and if it should be found that the personal property of the debtor was subject to a mortgage, giving the debtor a right of possession of the goods mortgaged for a specified or definite period, he should levy on the right, title and interest of the debtor or mortgagee, and advertise and sell it.
In this case there is no pretence that the constable levied on the right of the mortgagor subject to the mortgage, nor that he advertised the right; he must have advertised a sale of the property, for he offered the property at public sale when the defendant arrived and claimed it, upon and by virtue of his mortgage. It is claimed, that when thus notified
It is said that the plaintiff' in the execution, and the constable, left the property in the barn, and plaintiff could have' taken it or replevied it; but this was occasioned by the necessity of the case. In all cases where goods are wrongfully sold, the owner has an election to replevy the property from the hands of the purchaser, or recover its value from the tortious vendor purchasers, etc. (2 JDuer’s Sup. O. B-, 108; 10 Wend. B., 318.)
Judgment affirmed.