8 N.H. 359 | Superior Court of New Hampshire | 1836
Prior to the statute of July 4, 1834, upon the non-performance of the condition in a mortgage of goods and chattels, the property became absolute in the mortgagee, no provision having been made for any equity of redemption. 8 John. Rep. 96, (2 Ed. 75) Brown vs. Bement; 7 Cowen 290, Ackley vs. Finch; 9 Wend. Rep. 80, Langdon vs. Buel; 12 Wend. 61, Patchin vs. Pierce.
That statute confers on this court chancery powers in all cases respecting the redemption and foreclosure of mortgages ; and one of the powers exercised by a court of chancery is to decree a redemption of personal chattels, after the same have become forfeited, (12 Wend. 61) unless the mortgagee has foreclosed the equity by a sale, upon reasonable notice to the mortgager. Ibid; 2 John. Ch. Rep. 100, Hart vs. Ten Eyck.
There can be no doubt, however, that before, as*well as since that statute, the mortgagee might waive a forfeiture,
it is only upon the ground of waiver that the mortgagee could be entitled to take the whole money, unless the parties negotiated for a new purchase, which was not the fact in this case. Both parties here treated it as a redemption, (although the defendant made use of his right to hold the mare, to obtain further sums from the plaintiff than those mentioned in the mortgage.) This is evident from the fact that the mortgage was discharged.
No delivery, therefore, was necessary to perfect the plaintiff’s title ; and the defendant is liable in this action, having shut the mare in the stable and detained her, unless his excuse was a reasonable one, and he entitled to delay to ascertain his rights.
The excuse he made for withholding her was to ascertain whether he was not entitled to a receipt. But this, it is evident from the case, was a mere pretence to delay the plaintiff. If a receipt for the mare was intended, the plaintiff had not refused to give one, nor had the defendant asked for it. There was of course no ground for delay to enquire if he was entitled to demand one. And we are not aware of any authority which would have entitled him to require one. The detention was evidently dictated by other motives, was without sufficient reason, and under the circumstances must be held to be sufficient evidence of a conversion.
Judgment for the plaintiff.
