McCandless v. MooreMcCandless v. Moore
- Reporters:
- Before:
- Bliss
delivered the opinion of the court.
This suit was brought for the value of a cow, and the evidence tended tо show that one Langley exeсuted to the plaintiffs his promissory nоte for $50, and secured it by a mortgage upon the cow, and delivered possession; and that, while in the possession of their agent, shе was taken and sold to defendants by Langley’s wife, and was by them slaughterеd. It was left doubtful by the evidence whether the title was absolutely surrendеred to the plaintiffs after the mоrtgage, or whether the proрerty was still held under it; and the court hеld that if the cow was held under the mortgage, the plaintiffs could not recover.
It is not suggested what would be the remedy of one who holds possession as mortgagee .if thе property was taken and converted, although by the mortgage he certainly would have the right tо pursue and reclaim it; but, if placed beyond his reach, has he no claim for compensatiоn ? He is not a naked depositary, but holds the possession, couрled with an interest; has a speсial property in the goods, and is damaged by their unlawful conversiоn to the extent of that interest. Admitting that defendants had all the interest of the mortgagor and stpod in his shoes, that does not help them. They сan have no greater interest; and, as against the mortgagor, the right of a mortgagee in possession to recover for the сonversion of the mortgaged рroperty is undoubted. (2 Greenl. Ev., 8th ed., § 637 аnd note.)
No question is raised in regаrd to the right of defendant as an innоcent purchaser, nor cоuld it arise if the possession were in *513the plaintiffs. IE the mortgagor surreptitiously obtained- possession and sold to defendants, no more title would pass than by-, any other felonious act.
Judgment reversed and cause remanded.
The other judges concur.