28 N.Y. 585 | NY | 1863
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *587
Certain positions respecting actions of this character are perfectly well established in this court, viz. (1.) That a mortgagor of chattels remaining in possession before default, under a clause entitling him to such position, like the one in this mortgage, has an interest in the property which is the subject of levy and sale on execution against such mortgagor. The seizure by the receiver was in *588
the nature of a levy on execution so far as this case is concerned. (2.) That although the interest which passes to the purchaser at such sale is only such an interest as the mortgagor had, yet that the sheriff and the parties promoting the sale are not trespassers if the sale is in general terms, without any notice being taken of the existence of the mortgage. These points were involved in Hull v. Carnley, which was twice before this court, and were settled upon good deliberation. (1 Kern. 501; S.C.
It remains only to mention, that upon the former appeal in this case, the judgment was reversed solely because there had been a mistrial in the Superior Court, and that no other point was adjudged or attempted to be. This is explicitly stated in the report. Some of the judges were of opinion that where a sale on execution against a mortgagor (the instrument containing the provision found in the one before us) has been made, the mortgagee may maintain an action in the nature of trespass on the case, for an injury to his interest as a reversioner. I did not participate in that view, as may be seen from my observation in that case, (
WRIGHT, JOHNSON, HOGEBOOM and INGRAHAM, Justices, concurred. MULLIN and DAVIES, Justices, were for affirmance. SELDEN, J. was not prepared to vote.
Judgment affirmed. *590