Farrell v. Hildreth

38 Barb. 178 | N.Y. Sup. Ct. | 1862

By the Court, Welles, J.

The only question in this .ease requiring particular consideration is whether, at the time of the levy or the demand by the plaintiff of and upon the prop.? erty in question, John Farrell, the judgment debtor and mortgagor, had an interest in the property, liable to be levied upon and sold on execution against him. The mortgage was given on the 23d of January, 1860, and filed in the proper town clerk’s office the next day, January 24th. It contained the usual insecurity clause in chattel mortgages. The levy by virtue of the execution in favor of Pomeroy was on a sub? ' sequent day, but before the day appointed for the payment of the money secured by the mortgage.

It is well settled that the interest of a mortgagor, having a right to redeem, and a right to the possession of the mortgaged property for a definite period, may be sold on execution. (Mattison v. Baucus, 1 Comst. 295, and authorities there cited.) It is eqdally well settled that where the mortgagor has retained no other interest in the property than an equity of redemption, such interest fs not the subject of levy and sale. (Mattison v. Baucus, supra.) A great many other cases, to the same effect, might be cited. In order to bring the interest of the mortgagor within the power of an execution, there must be an absolute right of possession for a certain and definite period, at the time the levy is made. If the time is uncertain or contingent, it cannot be certain or absolute ; and if it be contingent and liable to,be defeated at any moment of time, as in the present case, it is not for a definite period. Who would enter into competition at the sale when he knew that if he purchased, his title might be defeated the next moment, by the claim of the mortgagee under the insecurity clause. The nature and extent of the interest remaining in the mortgagor immediately after the execution and delivery of the mortgage, is the test, unless that interest has changed and become enlarged afterwards and before the levy.

The mortgage conveyed all the mortgagor’s title and interest in the property to the mortgagee, subject to be defeated by payment by the law day. By the express provision in the mortgage securing to the mortgagee, in case of non-payment when the money became due, the right to take possession and sell, &c., an agreement was implied on the part of the mortgagee to allow the mortgagor to remain in possession until the money became due, (Hall v. Samson, 19 How. Pr. Rep. 481;) except for the subsequent provision in the mortgage, allowing the mortgagee to enter and sell at any time when he felt insecure, &c. That clause destroyed the moyt« gagor's right to remain in possession a moment, provided the mortgagee deemed himself insecure, and left him a mere tenant at sufferance. The nature of his interest was thereby determined to be uncertain and contingent; and, I had supposed, determined the question against the right of an execution creditor to levy and sell. But if a demand by the mortgagee was necessary, as is held in the case last cited, there was evidence of one in this case, at least sufficient to submit to the jury. There was abundant ground for a feeling of insecurity on the part of the mortgagee; .the sale was forbidden and the property demanded; and all the questions were submitted to the jury. And the return does not show that any objection" was raised or point made on the trial, on the question of the form or sufficiency of the demand. The jury, under the evidence, would have been well warranted in finding that the mortgagee felt himself insecure and unsafe, and therefore made the demand and forbade the sale. The defendant’s deputy, notwithstanding, and after direct personal notice of the mortgage, proceeded to sell the property.

[Monroe General Term, September 1, 1862.

The judgment of the county court should be reversed, and that of the justice affirmed.

Johnson, J. C. Smith and Welles, Justices.]