| Superior Court of New Hampshire | Dec 15, 1841
The declaration of the plaintiff, made after the transfer of the property by Howe, the mortgager, that he cared not what became of the horse, <fcc., cannot preclude the plaintiff from setting up the mortgage title, there being no evidence of any consideration for it as a release, and the sale not having been made on the credit of it, if that might make any difference. It was a mere loose declaration, which cannot operate as an estoppel. Rice vs. Chase, 9 N. H. Rep. 179. It might have a tendency to show that the
Upon the other part of the case, also, we are of opinion that the jury were misdirected. It is true, that the defendant might purchase the horse, subject to the mortgage ; and there seems to be no objection, in such case, to a delivery of the animal to the vendee, if the rights of the mortgagee are not thereby prejudiced. A removal of the horse, under such a sale and delivery, to a distance, so that the mortgagee could not gain possession of him without great inconvenience, might be evidence of a conversion.
There seems to be no reason to doubt that a purchaser of the property, subject to the mortgage, who had lawfully taken the possession, might hold that possession until a demand was made ; and if before a demand the horse had died, or if, for any other sufficient reason, he could not comply with the demand, his refusal would not constitute a conversion. A demand and refusal merely do not constitute a conversion, if the party has not the power of compliance. 1 Camp. R. 441, Smith vs. Young; 11 Vermont R. 351, Knapp vs. Winchester.
But in this case, although it did not distinctly appear on what terms the horse came into the possession of the defendant, there was evidence tending to show that it was by a purchase of the entire property, without regard to the mortgage ; and there is direct evidence that before the demand the defendant sold the horse, and parted with the possession. The purchase of the entire property, and an assertion of a right to a sole ownership under it, might be held to be aeon-version, being inconsistent with the rights of the mortgagee, (6 East 540,) although a mere assertion of right, without any other act, has been held not to amount to a conversion. 8 Vermont R. 30, Irish vs. Cloyes. And it seems clear that the subsequent sale was of itself a conversion. The general principle is, that assuming to one’s self the property and right of disposing of another man’s goods, is a conversion. 6
It is so in the case of a sale of the entire property by a tenant in common, 3 Johns. R. 175, Wilson vs. Reed; 9 Cowen’s R. 230, Hyde vs. Stone; 7 Wendell’s R. 449, Gilbert vs. Dickerson; 9 Wend. R. 338, Farr vs. Smith; 21 Wend. 72, White vs. Osborn; 21 Pick. R. 559, Weld vs. Oliver; 9 N. H. Rep. 511, Odiorne vs. Lyford. And the principle seems to be equally applicable in the case of a sale by a mortgager, or any one claiming under him, in exclusion of the rights of the mortgagee.
New trial granted.