84 Me. 153 | Me. | 1891
Trover for the alleged conversion of ninety-one cases of toothpicks. The defendant now seeks to have the verdict against him set aside.
The plaintiffs’ title is founded upon a mortgage given to secure a note payable in one year from February 1, 1889, the mortgagors "to continue in possession of the chattels until breach of the condition.”
This action was commenced onNovember 2,188 9, three months before the expiration of the term of credit, during which the mortgagors were to retain possession.
It is elementary that to maintain trover the plaintiff, though the general owner, must have the right of possession at the time of conversion. 2 Greenl. Ev. § 636. And, while a mortgage of chattels vests the title conditionally in the mortgagee, and generally the right of possession follows the title; and in the
The plaintiffs contend that they had the right of possession on November 2, 1889, when they commenced their action, notwithstanding the time stipulated in the mortgage had not expired, by reason of a formal release from the mortgagors, dated July 17, 1889. But the release was objected to and excluded until its execution was proved and there was no evidence of its execution.
It is also urged that the agent of the plaintiffs (mortgagees), by their direction, took possession of the property in June, prior to the date of the release, by taking the key to the room in which the property was stored. But there is no evidence that the mortgagors gave their consent, the mortgagees alone could not modify the stipulation in the mortgage. We do not mean, however, to 'decide that the mortgagee would be without remedy.
Again, the jury found as damages the whole value of the toothpicks. We are of opinion that this was contrary to law. For assuming that there was a technical conversion by the defendant (which we do not decide) the mere conversion of the property did not vest the title in the defendant. For when property has been converted and the owner, instead of replevying it, sues in trover for its value, the title does not vest in the converter, until at least judgment is recovered (Carlisle v. Burley, 3 Maine, 251; White v. Philbrick, 5 Maine, 147), and the over
Motion sustained. Verdict set aside.
New trial granted.