97 Mass. 37 | Mass. | 1867
This is an action of tort, in the nature of trover, or the conversion of a wagon. The facts of the case, as shown by the evidence at the trial, and the answers of the jury to the inquiries of the court, upon which a verdict for the defendant was directed, were as follows: James M. Shores on the 20th of May 1865 made to Truman H. Shores a mortgage of the wagon, the condition of which was that he should pay certain debts, including one due from James and Truman jointly to the plaintiffs; and this mortgage was duly recorded: On the 25th of May James made a second mortgage of the wagon to the plaintiffs, who immediately brought an action against James and
The plaintiffs contend that upon these facts Truman was " lot authorized to foreclose his mortgage, or to take possession )f or sell the property, and that the defendant’s claiming and ' withholding the property, when demanded by the plaintiffs, was wrongful conversion. It is unnecessary to consider whether he notice of intention to foreclose was authorized by law, be¡ause we are of opinion that the plaintiffs had no such right of >ossession as to entitle them to maintain this action.
The grounds of this opinion are elementary, and may be >riefly stated. A mortgage of personal property, recorded as provided by our statutes, passes the title to the property, and ilso the right of possession, unless the mortgage, expressly or by lecessary implication, provides that the possession shall be regained by the mortgagor. Boise v. Knox, 10 Met. 40. Brackett v. Bullard, 12 Met. 308. A mortgagee, having the right of property, defeasible only on performance of the condition of the mortgage, may assign his mortgage, and sell the mortgaged property to a third person, subject only to the mortgagor’s right of redemption. Homes v. Crane, 2 Pick. 610. Story on Bailments, § 327. When the mortgagee is entitled to the possession of the property, the mortgagor, having no right to the possession as against the mortgagee or his assigns, cannot maintain an action of tort in the nature of trover. Holmes v. Bell, 3 Cush. 324. Goodrich v. Willard, 2 Gray, 203. Leach v. Kimball, 34 N. H. 568. In the case before us the retention of possession by the mortgagor was not required by the terms of the first mortgage, or by the purpose for which it was given, as expressed in the condition. A second mortgagee has no better title than the mortgagor as against a first mortgage duly recorded. Rugg v Barnes, 2 Cush. 591.
In Spaulding v. Barnes, 4 Gray, 330, the reasons of decision