8 Barb. 585 | N.Y. Sup. Ct. | 1850
The plaintiff purchased the horse, which is the subject of this suit, of one Jonathan Sher
After Jonathan Sherwood had taken this horse from the owner’s possession, as forfeited, and sold him to the plaintiff, the defendant, (one of the firm of Allen & Taylor;) to whom Dan Tredway, Bradley Higgins and David Sloan had assigned their interest in the mortgage, took the horse from the possession of the plaintiff; and for this taking the action was brought. It was upon an offer to contradict this assignment, by parol, that the plaintiff takes his first exception.
I. After the introduction of the assignment of the mortgage in evidence, the plaintiff offered to show that the assignment was given and executed merely to discharge the mortgage from the lien which the assignors had on the property mentioned in it. This was objected to, and overruled by the court. The assignment purports to convey to Allen & Taylor all the rights the assignors - had in the property, except a carding machine, and fixtures, and authorizes the assignees to do what the assignors might do if the assignment had not been made. The offer was, therefore, to contradict every word of the instrument, and totally change its legal character. The question is, can
II. The next question is, w’hat were the legal rights of the respective parties? Jonathan Sherwood had a debt of $30, which was due; and Alien & Taylor had a debt of $200, which was also due. And by the express terms of the instrument the whole was forfeited by a single default. The property therefore was forfeited to the. holders of the mortgage, jointly, and they became tenants in common of the whole property. They probably did not, as between themselves and their co-mortgagees, become entitled to the horse as absolute owners. That question, however, does not necessarily arise here. But it is enough to say that Jonathan Sherwood had no sole and several right to the horse, authorizing him to appropriate it to his own use for the $30 due him. Taylor (of the firm of Allen & Taylor) certainly had an equal right to him. The most that can be^s claimed by Sherwood is, that he is a co-tenant with Allen & 1 Taylor and the other mortgagees. Being such co-tenant he j had no right to sell the horse to the plaintiff. (White v. Osborn, 21 Wend. 76.) . Owning only an interest as a tenant in