Thomas v. Graves

89 Vt. 339 | Vt. | 1915

Watson, J.

The bill of sale from the defendant to the oratrix of the personal property enumerated in exhibit 1, accompanied by the delivery of the possession of such property, as security for the payment of the latter’s two notes against the former, constituted a pledge, the delivery by the pledgor to the pledgee, of the key to the house containing the property pledged, being in law a constructive delivery of the possession of the property itself. Jones on Pledges, §37; Chappel v. Marvin, 2 Aik. 79, 16 Am. Dec. 684.

The pledgee being so in possession of the pledge, she could not be deprived of such possession by the pledgor’s taking possession of the house where the property was stored, without the knowledge or consent of the pledgee or her agent. This possession of the pledge by the wrongful act of the pledgor, without the assent of the pledgee, did not create a forfeiture of the lien. Jones on Pledges, §41; Walcott v. Keith, 22 N. H. 196; Way v. Davidson, 12 Gray. 465, 74 Am. Dec. 604; Thatcher v. Moore, 134 Mass. 156; American Pig Iron, etc. Co. v. German, 126 Ala. 194, 28 So. 603, 85 Am. St. Rep. 21.

It is urged that the court erred in undertaking to ratify and confirm the sales made to the pledgee by her agent Mr. Bates. There is no doubt about the general proposition that a pledgee can not become the purchaser of the pledge; but in the instant case the record shows that by agreement of the parties the pledgee was to have “the right to sell such part of the property as she was able to, providing she did not sell for less than the price to be fixed upon the several articles by the” pledgor; that before the appointment of the receiver the oratrix’s agent disposed of part of the property at private sale, receiving therefor the aggregate sum of $1,451.30, none of the articles being sold for less than the price fixed by the pledgor, and some were sold for more; that of 'the articles so sold by said agent, the pledgee was the purchaser to the aggregate sum of $285.10, which sales were made to her because she would pay more for the property than any other customer the agent was able to find; that the agent reported the sales made by him, or most of them, to the pledgor as' soon as they were made, informing her of the particular article sold and the price received. The record does not show that the pledgor ever objected to any of the sales so made; nor does it show an express finding of her assent to the sales made to the pledgee. These last mentioned sales were not void, but they were voidable at the option of the pledgor. From the facts found it may fairly be inferred that the latter afterwards ratified the sales made hy the said agent, including those to the pledgee, (Jones on Pledges, §638; Bryan v. Baldwin, 52 N. Y. 232; Appleton v. Turnbull, 84 Me. 72, 24 Atl. 592; Lord v. Hartford, 175 Mass. 320, 56 N. E. 609,) and in affirmance of the decree it is presumed that the court below drew such inference. It is said, however, that no prayer for such relief is contained in the bill. True it is that there is no such specific prayer; but there is a prayer for general relief, and under this the oratrix may have such relief as her case entitles her to. The. allegations in the bill involve all the sales made in connection with the enforcement of the pledge, and we think they are sufficiently broad to cover this phase of the case as shown by the facts found.

It is said that there was no consideration for the giving of the bill of sale. But this is not so. The preexisting debt due from the defendant to the oratrix was a good and sufficient consideration for the giving of security, by way of pledge, for the payment .of the same. Jones on Pledges, §469; Atkinson v. Brooks, 26 Vt. 569, 62 Am. Dec. 592; Austin v. Curtis, 31 Vt. 64; Noyes v. Landon, 59 Vt. 569, 10 Atl. 342. Nor did the fact that the oratrix held á fifth mortgage on real estate owned by defendant, conditioned for the payment of the same indebtedness, make any difference in this respect. Such a mortgage would hardly be considered first-class security; and if it were, it would be no legal obstacle preventing her getting further security by way of the pledge in question. Burpee v. Parker, 24 Vt. 567.

It is further said that defendant was entitled to notice of sale, so that she might exercise the right to redeem. Ordinarily this would be so. But. the decree shows that the court below construed the agreement found as giving to the pledgee the power to dispose of the property by private sale without notice to the pledgor. It appears from the record that the first talk between Bates and the defendant was about her giving a chattel mortgage on the same property, but she finally objected to this, stating as a reason that she did not want the notoriety of a public sale in its enforcement; and thereupon the agreement was made for the pledge in question. We think the parties therein contemplated private sales by the pledgee, conditioned only as to the price to be received. The right of notice was thereby waived by the pledgor. Jones on Pledges, §611.

The rugs moved by Bates from the Grant farm to the house at Old Bennington, were within the agreement of pledge, but were to remain at the Grant farm while the defendant occupied the building there, and when she ceased to do so the property there (covered by the agreement) was to be moved into the house at Old Bennington and, with the rest of the pledge, kept there until sold or the indebtedness was satisfied. The removal of the rugs was during her occupancy of the Grant farm, but it did not appear when, nor is it expressly found whether such removal was with or without her consent. It was not essential to the validity of the pledge that all the property should be delivered to the pledgee at the same time, nor at the time of making the agreement. As to any of the property not then delivered, the pledge took effect upon subsequent delivery made in performance of the contract. American Pig Iron etc. Co. v. German, cited above. The irregularity, if any, connected with the removal of these rugs, was only as to time, and on the facts found the court below might well infer, and we assume it did infer, that if there was such irregularity, it was waived by the defendant.

Finally it is argued that the court was without jurisdiction to take an accounting between the parties. One of the remedies had by the pledgee was to file a bill 'in chancery in the nature of a foreclosure bill and proceed to a judicial sale of the pledge. White River Savings Bank v. Capital Savings Bank and Tr. Co., 17 Vt. 123, 59 Atl. 197, 107 Am. St. Rep. 754. It is said in that case that whenever the purpose of the pledge is satisfied-, the right to the surplus, if any, is in the pledgor or some one having an interest in the general property under him. This involves an accounting as an incident to the remedy.

Decree affirmed and cause remanded.