Flanders v. Barstow

| Me. | Jun 15, 1841

The opinion of the Court was drawn up by

Weston C. J.

The right of the plaintiff to recover in this action, will depend upon the question, whether at the time of the sale by the defendant, of the chattels described in the schedule annexed to the mortgage, his title thereto had become absolute at law. And we are of opinion, that such was the fact.

By a conveyance of goods in mortgage, the whole legal title passes conditionally to the mortgagee; and if not redeemed at the time stipulated, his title becomes absolute at law; though equity will interfere to compel a redemption. Story on Bailments, c. 5, § 287; 4 Kent, 138.

If the condition had been broken at the time of the sale, the defendant’s legal title had become absolute. The plaintiff having failed to pay the first note, at the time stipulated, was a breach of the condition, if the time had not been enlarged. Being enlarged, the condition was saved, until the extended time had run out. The parol agreement, made by the defendant was, that he would extend the mortgage fifteen or twenty days. This would fairly give to the plaintiff an extension for the longer period. To entitle the plaintiff to redeem, by the condition of the mortgage, he was to pay two sums of equal amount, the one in sixty, and the other in ninety days, from the date of the instrument.

It is insisted, by the counsel for the plaintiff, that under the parol agreement, he might delay payment of both notes, without forfeiting his right to redeem, for fifteen or twenty days, after the second note was payable. This is extending the indulgence granted beyond what it will fairly bear. It may be justly understood to mean, that the plaintiff was to have an extension of fifteen or twenty days, upon each note. Upon the construction, set up by the plaintiff, it would be giving him forty-five or fifty days enlarged time, upon the first note, which we think is not deducible from the language used by the defendant.

Exceptions overruled.