— A mortgagee of personal chattels has a right to the possession of them, unless it is agreed that they shall remain with the mortgager. Libby v. Cushman, 29 Maine, 429; Holmes v. Sproul, 31 Maine, 73. By a conveyance of goods in mortgage, the whole legal title passes conditionally *509to the mortgagee, and if not redeemed at the time stipulated, the title becomes absolute at law. Story on Bail. § 287; Flanders v. Barstow, 18 Maine, 357.
In the present case, the mortgagers agree to keep the property mortgaged, “ till called for, free of expense to said Stewart.” The plaintiff had a right to the possession at any time, and the act of taking and selling the property was a violation of that right, for which trespass would lie. The mortgagers had no right to retail^ it against the will of the plaintiff. Woodruff v. Halsey, 8 Pick. 333; 1 Chit. Plead. 167. The plaintiff, like any other general owner, could take the actual custody of the property whenever it might suit his convenience. The defendant offered to prove, £i that before the execution of the plaintiff’s mortgage, one of the Christies, being one of the mortgagers, came with the large red horse, which was included in the mortgage, to the defendant and surrendered said horse to the defendant, at the same time declaring there was a previous bargain, that the horse was to be the property of the defendant, unless ho paid the defendant for him, and this he had not done. The Judge admitted the proof of the surrender of the horse, but excluded the declarations of the previous bargain. And the jury were instructed, that they Avould be authorized to find, if they believed the testimony upon that point, that the large red horse was transferred to the defendant by his surrender, it not appearing that the mortgagers were owing at that time any debts.”
tit may be difficult to determine, at all times, when declarations shall be received as a part of the res gesta. But when they explain and illustrate it, they are clearly admissible. Mere narratives of past events, having no necessary connection with the act done, would not tend to explain it. But the declaration may properly refer to a past event as the true reason of the present conduct. } If one should hand to another a sum of money, and should say that it is in payment of money borrowed at a former period, there could be no doubt, that the declaration would be explanatory of the act, although it referred to the past. So too if one should deliver a horse to an*510other with an accompanying declaration, that he had returned the horse, which he had previously hired of him ; the act and declaration would be admissible upon a question subsequently arising in relation to the title of the horse, between the person to whom it was delivered and one claiming the horse under the person, who made the declaration. But when the narrative departs from a just explanation of the act, it affords no elucidation of it. Because the declaration regards the past, it is not therefore to be rejected.^
The declaration, in the present case, made at the time of the surrender, was before the plaintiff had acquired any interest in the horse. It implied, that the horse, at that time, was the property of the defendant. And although it referred to a previous bargain, that bargain was still existing. It was in substance a recognition of a present state of things, as much so as if it had then been agreed, that the horse .was the property of the defendant, and was to remain as such until payment was made for him. The mortgager had at that time a perfect right to admit that the . defendant owned the horse, or to recognize a prior agreement producing the same effect. The declaration does appear to be explanatory of the surrender.
But it is said, that the jury did not believe the fact of the surrender, and therefore the declaration was immaterial. But their disbelief may have arisen from the exclusion of the explanation. The proof of the surrender merely, without any information as to the reasons for it, might create doubts off the existence of the fact. If the evidence was admissible the party offering it should have had the benefit of it. The jury might have taken a more favorable view of the alleged fact, if the declaration had been admitted. The exceptions must be sustained. Verdict set aside and
a new trial granted.
Shepley, C. J., and Howard, Rice and Hathaway, J. J., concurred.