The opinion of the Court was by
Shepley J.— It appears, that Emery Sprague on the 24th day of December, 1840, conveyed to the plaintiff in mortgage certain personal property to secure the payment of one hundred and twenty-five dollars in one year from that time; and that the mortgage was duly recorded, and the property left in the possession of the mortgagor. Whatever rights the plaintiff might have had independently of it, he must be considered as waiving by taking the mortgage. This property was on the following day attached by Hayford on a writ against Sprague in favor of the other defendant, and was removed from the possession of the mortgagor. It is contended, that the sheriff was authorized to make such an attachment and removal of the property by virtue of the statute, c. 188, $ 2. That statute provides, that personal property mortgaged may be attached, provided the person for whose benefit the attachment is made shall first pay or tender to the mortgagee the full amount of the demand, for which it is mortgaged. It then proceeds to provide for a sale of the property and for a disposition of the proceeds to pay the debt due to the mortgagee, and says, “ and the residue of such proceeds shall be applied to the satisfaction of the judgment of the plaintiff in the manner provided by law, or the plaintiff may attach the property so pledged, mortgaged or held, and sell the same on execution as in other cases, subject however to the rights and interest of such mortgagee, pledgee or holder.”
There are cases in which by our statutes a valid attachment may be made of personal property, which is left in the possession of the person, who held it before the attachment; and in such cases it may be practicable to make an attachment without interfering with the rights of the mortgagee, pledgee or holder, and without making a tender or payment of the amount *237due; as it may also perhaps, where the person in possession procures a receipt for and retains the property. The language of the statute applies equally to the mortgagee and pledgee. The latter relies especially and often wholly upon the actual possession of the property for the security of his rights, which could not be preserved, while the property was taken from him by an attachment. Nor could those of a mortgagee, if he could be deprived of the actual possession, or of his right to take immediate possession, until after the recovery of judgment and a sale of the property, and a transfer of the possession had been made to any one, who should become the purchaser. The statute allows the attachment to be made only subject to the rights of the mortgagee, and does not authorize a diminution of those rights without a payment or tender of the amount due. And without such tender or payment an attachment of the property can only be made, when it can be effected without depriving the mortgagee or pledgee of the actual possession, or of the right to take immediate possession.
In this case, although the mortgagee had not the actual possession, he had the right to take the immediate possession. That was an important and valuable right, which could not be destroyed. The presiding Judge therefore properly declined to comply with the request for instructions; and the exceptions are overruled.