46 N.H. 169 | N.H. | 1865
The sale in this case was conditional, and the property in the melodeon was not to vest in Ripley until the note he gave for it was paid. Still he acquired an equitable interest in it which was holden for the payment of the note. That note he was bound to pay, and had already paid part, although, until he paid the rest, the general property in the melodeon remained in the vendors; not, however, as the absolute owners, but as collateral security, not differing materially from security by way of mortgage or other lien; Root v. Lord, 23 Vt. 568; and we are of the opinion that a transfer of the note would carry with it, as an incident, the assignor’s interest in the melodeon, in the same manner as the assignment of a mortgage debt would carry with it the mortgage; Rigney v. Lovejoy, 13 N. H. 247.
In form this is neither a pledge nor mortgage, but the obvious purpose of the parties was a sale, and the holding of the melodeon as security for the price; and we think it must so be regarded. If it be' so, then the property so held passes with the debt as a mere incident, as in other cases of collateral security; otherwise the vendor, who has already received pay for his property, continues to hold it, with the chance that it may become his absolutely, if the vendee should fail to pay the price to tfie assignee.
The counsel for the plaintiff admits that an equitable interest in the melodeon passed to the assignee, but contends that it must be worked out through the assignor. If, however, such equitable interest did pass, it must be upon the ground that the property was held as collateral security., and was a mere incident of the debt, and if so, it is properly embraced by the doctrine applicable to the assignment of mortgages of real estate. .
If, then, this melodeon is to be regarded as collateral security for the price, and of this we have no doubt, it must pass with a transfer of the note given for it, and consequently this action cannot be maintained.
With these views, of course, it is immaterial whether the plaintiffs did or did not assent to the suit.
Verdict set aside.
