Ingraham v. Martin, 15 Me. 373

Ingraham v. Martin

15 Me. 373 | Me. | 1839

The opinion of the Court, after a continuance, was drawn up by

Weston C. J.

By the instrument, under which the plaintiffs acquired title to the property in question, Benjamin T. Ingraham, the original owner, was to retain possession, “without denial or in-' terruption” from the plaintiff, for the period of two years, which *375bad not elapsed, when this action was instituted. Having no' right to possession at the time, according to the cases of Wyman v. Dorr, 3 Greenl. 183, of Wheeler v. Train, 3 Pick. 255, and of Collins v. Evans, 15 Pick. 63, the plaintiff could not maintain replevin. These cases are exactly in point, from which the one before us cannot bo fairly distinguished. The mortgagor of personal property generally holds possession at the will of the mortgagee, who may terminate it at pleasure. Having the right of immediate possession, he may therefore maintain trover or replevin. It is otherwise where he has invested the mortgagor with the right of possession for a definite period, which has not elapsed. This is clearly shown by the cases before cited, to which reference may bo had for the authorities, upon which they rest.

In Wheeler v. Train, there was a stipulation, in a separate instrument, that the vendor might remain in possession for one year. This was held not to be conclusive evidence, that the sale was fraudulent; but it was not held that, if the transaction had been a mortgage, the mortgagee could have maintained replevin during the year. In Holmes v. Crane, 2 Pick. 607, the mortgagee reserved to himself the right to take possession on demand, whereby the mortgagor became, as in other cases, his mere tenant at will. In DeWolf v. Harris, 4 Mason, 534, the mortgagee reserved to himself the same privilege.

In Melody v. Chandler, 3 Fairf. 283, O'Reilly, the original owner, was held, under the circumstances of that case, to have retained the possession, merely as the servant or agent of the plaintiff.

The verdict is set aside, the plaintiff is to become nonsuit, and the defendant to have judgment for his costs. As the jury have found the property in the goods to be in the plaintiff, and as he has now a right to the possession, the two years having terminated, the defendant is not entitled to a return. Nor can he, for the same reason, have judgment for damages, the interest of the debtor in the goods being of no available value to the attaching creditor.