Wildman v. Radenaker

Cope, J. delivered the opinion of the Court—Field, C. J. and Norton, J. concurring. This is an action to recover possession of specific personal property, of which the plaintiff alleges that he is the owner. The defendant sets up a right to the possession under a mortgage executed to him by the plaintiff,'and under a bill of sale to one Malone. The judgment is in favor of the defendant for costs, but the plaintiff having replevied the property, the defendant appeals, and contends that he is entitled to a judgment for its return.

So far as the mortgage is concerned, there is no doubt that it constitutes a valid defense, and no error has been committed unless the defendant is entitled to a return. The property is not such as could be mortgaged under the provisions of the Chattel Mortgage Act, and the mortgage was not executed with reference to that Act. Its effect is to be determined by the rules of the common law; and it is a well settled rule of that law that a mortgage of personal property [618]entitles the mortgagee to the possession. (1 Parsons on Contracts, 455, note C.) It appears, however, that after the suit was brought, the plaintiff tendered to the defendant the amount secured by the mortgage, and this we regard as a sufficient answer to the demand for a return of the property. Immediately upon its return, the plaintiff would have a right of action for its recovery, and the effect of the judgment would be to take the property from the person legally entitled to it.

The right asserted under the bill of sale from Malone is not available either as a defense, or for the purpose of obtaining a return of the property. Malone was the original owner of the property, and the plaintiff purchased it of him, giving back a bill of sale to secure the payment of a portion of the purchase money. An arrangement was entered into by which it was agreed that upon the payment of two hundred dollars, control of the property should be relinquished to the plaintiff, and the amount was paid and the property removed from the premises of Malone. The evidence shows, and the jury finds, that the object of the arrangement was to enable the plaintiff to mortgage the property to the defendant, and its effect was to extinguish the claim of Malone as a lien. The balance of the claim, if there be any, still exists as a personal obligation, and may be enforced as such, but is not a lien upon the property, and cannot be used to defeat an action for its recovery.

The judgment is affirmed.