| Vt. | Jan 15, 1843
In the present case it is not necessary to go into any nice learning in order to determine whether the contract between Heflon and Cynthia Russell, by which the plaintiff claims title to the property sued for, was a pledge or pawn, a mortgage, or a mere lien, as, in either case, the decision of the questions involved must be the same.
1. The question of possession. If it appear by the case, that the possession, in fact, remained in Heflon until the attachment by the defendant, it must be fatal to the case in either view. As a pledge merely, it could not be created without a change of possession, and would be lost by a surrender of the thing to the pledgor. The same is the law in regard to a lien, whether created by the usage of trade, by custom, or by express contract. A mortgage might exist’ between the parties, without any change of possession, as, in such case, the general property is transferred to the mortgagee ; but, without a substantial and continued change of possession, it would be unavailing, as against creditors. It does not appear in this case, that the possession continued in the debtor, Heflon, and this court cannot presume it. Every presumption is in favor of the proceedings in the court below. Here, as every where, we presume omnia rite acta, until the contrary is made to appear. It would seem probable, from the case, that the debtor either never had the possession of the property, or parted with it long before the attachment.
2. The right of Cynthia Russell and her husband to assign. If this be a pledge or mortgage, by every rule of law, it is assignable. 2 Kent’s Com. 579. And if it be but a mere lien, although that right will not pass by a general pledge, as was held in Daubigny v. Duval, 5 Term R. 604-5, Newton v. Thornton, 6 East, 17, and many subsequent cases, yet the mere transfer of the right of lien, as was done in the present case, is good. 2 Kent’s Com. 639; Urquhart v. M’Iver, 4 Johns. R. 103. In the latter case the rule is thus laid down by Kent, Ch. J. “ Though a factor cannot pledge the goods of his principal, as his own, yet he may deliver them to a third person, as security, with notice of his lien, and as his agent to keep the possession for him, in order to preserve that lien.” The rule is laid down
But if it were necessary to discuss the point, it is obvious, that the present case is not that of lien, strictly and technically speaking, which is a security for some labor done or expense incurred in regard to the very thing, in which the lien exists. This is more properly a pledge, it being founded on the words “ turn out and deliver.” If a mortgage were intended, we should expect to find the parties using terms more indicative of an intention to transfer the general property. Chancellor Kent, 2 Com. 577, and Mr. Justice Story, on Bailments, 197, say, a pledge, or pawn, “ is a bailment of personal property, as security for some debt, or engagement.” That is the present case, and the assignment is to the one in equity entitled to the benefit of the security, and who might, in a court of equity, have compelled such assignment.
The license given Heflon to use four bushels of the wheat did not make him a tenant in common of the mass.
Judgment affirmed.