37 Minn. 135 | Minn. | 1887
The plaintiff was in possession of the team of horses in controversy, under a contract for the purchase thereof, and
Upon payment by defendant of the first note in November, 1884, the plaintiff executed a chattel mortgage to defendant upon the horses and harness in controversy, to secure the amount so paid. The plaintiff was in possession, and the mortgage was valid between the parties, but was subject to the rights of the original vendor under the terms of the second note. When defendant paid the latter, he was subrogated to the rights and remedies of the. payee. There was no merger of the chattel mortgage which secured the amount of the first note, and his remedy thereon was entirely independent of his rights as surety upon the second note; and, if the latter had been paid by the mortgagor, the mortgage would still have remained in force. The defendant was therefore entitled to take the property upon the mortgage upon breach of the condition therein; or he might assert his right to the possession as the equitable assignee of the interest of the payee in the second note, and, if sued in trespass or replevin, he might justify accordingly. McArthur v. Martin, 23 Minn. 74; Brandt, Sur. § 269; Myres v. Yaple, 60 Mich. 339, (27 N. W. Rep. 536.)
As between the plaintiff and defendant, if the latter had elected to proceed under the mortgage only, and the plaintiff were entitled to recover because there had been no default therein, yet the facts in respect to the outstanding second note and the state of the title might be shown as respects the team, upon the question of the value of the plaintiff’s interest or equity. He would not be entitled to recover the full value of the property. Cushing v. Seymour, 30 Minn. 301, (15 N. W. Rep. 249;) Jellett v. St. Paul, M. & M. Ry. Co., 30 Minn. 265,
A new trial was properly granted.
Order affirmed.