| Mass. | May 20, 1904
The plaintiff must prevail on the strength of his own title, and if under the alleged sale the title of the defendant did not pass to him, he never gained a legal right of ownership in the piano and cannot maintain this action.
An examination of the contract shows that it is a negotiable promissory note in the usual form, combined with a statement of pledge that the piano was given as collateral security for its payment, joined with a power of sale. It may be treated as an agreement consisting of two parts: one the making of the note; the other the agreement giving security for its payment, though for convenience both are united. No further separation or distinction seems to be justified, for the power of sale is not a mere naked order or license to take the piano if the note is not paid, and sell it, but is appendant to the superior right, to enforce which it is given, and that such was the understanding of the parties is manifest from the form of the proceedings to foreclose, as the sale was not made until after written notice to the defendant, and in strict conformity to the power by which the property could be converted. By recording this contract its terms were not changed, nor did this act impress upon it the character of a mortgage, Williams v. Nichols, 121 Mass. 435" court="Mass." date_filed="1877-01-06" href="https://app.midpage.ai/document/williams-v-nichols-6418762?utm_source=webapp" opinion_id="6418762">121 Mass. 435, 436, neither can the fact of record be taken as amounting to a constructive delivery of the property. Burge v. Cone, 6 Allen, 412" court="Mass." date_filed="1850-10-15" href="https://app.midpage.ai/document/white-v-south-shore-railroad-6409478?utm_source=webapp" opinion_id="6409478">6 Allen, 412.
Though no particular or set form of words are required to constitute a mortgage of personal property, yet it not only must contain language from which the intention of the parties to enter into such an obligation is apparent, but the terms employed must be legally sufficient to carry out such purpose.
In the agreement under consideration none of the elements of a personal grant are found, as the writing signed by the defend
But if the transaction cannot be classed as a mortgage, it is the contention of the plaintiff that it can be treated as a pledge.
In the language used no direct formal personal pledge is made, but giving to the words “ having pledged ” the meaning which they naturally import it may be said that there was a present intention to furnish security, which was executed to the extent of signing the combined agreement, and if this had been followed by a delivery the bailment would have been complete. Radigan v. Johnson, 174 Mass. 68" court="Mass." date_filed="1899-07-01" href="https://app.midpage.ai/document/radigan-v-johnson-6426792?utm_source=webapp" opinion_id="6426792">174 Mass. 68.
Beyond the statement that no actual delivery was made, which term must be considered as meaning a transfer of possession, the exceptions are silent, and whether any further steps were taken by the pledgee, such as taking formal manual possession of the piano, and then leaving it with the pledgor as his agent, is left to conjecture, and cannot be supplied in the decision of the case, which must be left where the parties are content to rest it, with no delivery of a chattel capable of being actually transferred, and the plaintiff’s title rests alone on a constructive possession arising out of the paper transaction.
It is uniformly held that by a contract of pledge only a special title passes to the pledgee, which depends on actual possession, while the general right of property remains in the pledgor, and in order to' hold and preserve his lien there must be not only a physical delivery, where the chattel can thus be transferred, but continued possession also retained. Ward v. Sumner, 5 Pick. 59. Bonsey v. Amee, 8 Pick. 236. Walker v. Staples, 5 Allen, 34. Thompson v. Dolliver, 132 Mass. 103" court="Mass." date_filed="1882-01-05" href="https://app.midpage.ai/document/thompson-v-dolliver-6420486?utm_source=webapp" opinion_id="6420486">132 Mass. 103. Shaw v. Silloway, 145 Mass. 503" court="Mass." date_filed="1888-01-05" href="https://app.midpage.ai/document/shaw-v-silloway-6422627?utm_source=webapp" opinion_id="6422627">145 Mass. 503, 506. Moors v. Reading, 167 Mass. 322" court="Mass." date_filed="1897-01-08" href="https://app.midpage.ai/document/moors-v-reading-6425807?utm_source=webapp" opinion_id="6425807">167 Mass. 322. Beeman v. Lawton, 37 Maine, 543, 546.
But this does not prevent a pledgee from permitting the pledgor to take and use the pledge for any special or limited
It has accordingly been held that the pledgor may be the agent of the pledgee after original delivery, to retain the property pawned, and in such case the intention of the parties control, and the legal title does not change for the reason that the pledgor holds as the agent of his principal. Kellogg v. Tompson, ubi supra. Casey v. Cavaroc, 96 U.S. 467" court="SCOTUS" date_filed="1878-04-15" href="https://app.midpage.ai/document/casey-v-cavaroc-89728?utm_source=webapp" opinion_id="89728">96 U. S. 467. Easton v. German-American Bank, 127 U.S. 532" court="SCOTUS" date_filed="1888-05-14" href="https://app.midpage.ai/document/easton-v-german-american-bank-92279?utm_source=webapp" opinion_id="92279">127 U. S. 532. Martin v. Reid, 11 C. B. (N. S.) 730.
The plaintiff relies on the decision made in Macomber v. Parker, 14 Pick. 497, but the case is an authority against his position rather than one in his favor. Among the issues raised in that case was the question of title between an attaching creditor, and the plaintiffs who claimed the property attached, under a pledge to them made by the debtor and the pledgor, who thereafter remained in manual possession of the pledge. But as it appeared that the plaintiffs had taken and retained possession of the property, and that the pledgor at the time of the attachment was acting as their agent, it was held that the pledge was not lost, but constituted a valid lien. Here if the pledgor had sold the piano, or a creditor had attached it, either would have had a good title against any one claiming under the contract. If there was neither delivery nor possession there was no pledge, and this part of the agreement became purely executory, and there was no property on which the alleged foreclosure could operate. Macomber v. Parker, Thompson v. Dolliver, Shaw v. Silloway, and Casey v. Cavaroc, ubi supra.
As the plaintiff has acquired neither title in nor right of possession to the property replevied, he cannot maintain his action. Pratt v. Parkman, 24 Pick. 42, 44.
If the sale is treated as an execution of the power, which has failed to vest in the purchaser any title because there was no special property in the supposed pledgee that could be transformed by its exercise into full ownership, and the foreclosure therefore operated in equity as an assignment of whatever rights such pledgee may have had, whether the plaintiff can by an
Exceptions sustained.