Opinion
March Term, 1866
John H. Reynolds, for the appellant.
Andrew H. Green, for the respondents.
The execution of the chattel mortgage invested the plaintiff with title, subject to be defeated by subsequent performance of the condition. The right of possession ordinarily follows that of property, and both would have passed under the transfer, in the absence of any express or implied agreement for the retention of the goods by the mortgagor. It has been held in some of the cases that no such agreement can be implied from provisions substantially like those contained in the present mortgage. ( Rich v. Milk, 20 Barb., 616; Chadwick v. Lamb, 29 id., 518.) The court below held otherwise, and in their conclusion on this branch of the case we concur. The mortgage specifically defined the circumstances under which the grantee should become entitled to the right of possession; and this evinces the mutual intent of the parties, that, until it vested in the mortgagee, it should remain in the mortgagor. His possessory right was to terminate on failure to pay the debt at the time named, or at such earlier time as might be fixed by the election of the mortgagee, if in good faith he should deem himself insecure. On the 29th of June, there had been no breach of the condition; and we entertain no doubt that Walpole had then an interest in the piano, which justified the defendant in taking it under the attachment. ( Carpenter v. Town, Lalor, 72.) But that interest terminated on the 5th of October, when the plaintiff, finding his debt insecure, exercised his right under the mortgage to treat the condition as broken. His act in taking possession of the bulk of the property, was an assertion of his claim and an enforcement of the forfeiture. From that time he had the right of possession as well as the legal title; and the authority of the sheriff ended with the interest of the debtor. ( Galen v. Brown, 22 N Y, 37, 41.) The piano was then at the house of Jones, where the defendant subsequently seized it under his execution in the attachment suit, removed it from the premises and sold it at public auction. No demand was made by the plaintiff, and none was necessary. The officer had no authority for the seizure and sale of his property. It was the wrongful appropriation of the goods of one to pay the debt of another.
The order of the Supreme Court should be reversed, and the judgment on the report of the referee, should be affirmed.
All the judges concurred in the foregoing opinion, except that SMITH and MORGAN, JJ., were of opinion that the mortgagor had no leviable interest at any time after the execution of the mortgage, and PECKHAM, J., who was for affirmance, dissented.
Judgment reversed.