Nichols v. Mead

By the Court

— Johnson, P. J.

The action was to recovei possession of certain' goods and chattels which the plaintiff *225claimed as mortgagee of Frank B. Green. The defendant levied upon the property by virtue of an execution in his hands as sheriff of Cayuga county, issued upon a Judgment against Green in the Supreme Court in favor of certain creditors. At the time of the levy, the plaintiff was in posses siou of the property by virtue of his mortgage.

The plaintiff at the close of his evidence was nonsuited. The nonsuit was right if Green, the judgment debtor, had at the time of the levy, an interest in the mortgaged property, which was subject to be taken and sold oil execution. Otherwise the nonsuit was erroneous, and a now trial must be granted. It is well settled, that after a mortgagee has taken possession of the mortgaged property, by virtue of a power in the mortgage the mortgagor has no remaining interest in it, which can be seized and sold on execution, even though the mortgage debt is not due. The interest of the mortgagors is then but an equity of redemption, which is. not the subject of seizure and sale on execution. (Mattison v. Baucus, 1 N. Y., 205; Galen v. Brown, 22 id., 37; Hall v. Sampson, 35 id., 274.) It is claimed on the part of the defendant, that by the terms of the mortgage, the mortgagor had a reserved interest in the property to the amount of $408. 81. But nothing of this kind appears on the face of the instrument, or by the paroi evidence. The mortgage, by its terms, transfers the entire property to the. plaintiff’ subject only to the condition, of payment in one year, which the mortgagor undertook in terms to perform. This transferred the entire legal title to the goods, to the mortgagee, subject to be defeated by payment. (Butler v. Miller, 1 N. Y., 406.) When payment is made according to the condition of the mortgage, the title reverts to the mortgagors in every case. That is one of the incidents of a defeasible sale. Biit this is quite different from a reserved interest, which is subject to the claims of the creditors of the mortgagor on execution. By the terms of this mortgage, the mortgagee had the right to proceed and sell forthwith, at prices not below the cost price (except in the case of remnants), to *226raise funds, to meet the liabilities as they should fall due respective^, and. when the debt was paid, the residue remaining unsold reverted to the mortgagor. But, as in every other chattel mortgage, the title to the entire stock, is in the mortgagee until the debts are paid. It is clear, therefore, that Green, the mortgagor and judgment debtor, had no interest in the mortgaged property, which was the subject of levy and sale by execution.

If there was any question as to the fact of the plaintiff’s possession, or of fraud in the making of the mortgage, as resjiects the creditors of the mortgagors, it was a question for the jury to determine and not for the court. I do not see that any question properly arises here, upon the complaint, or in regard to the identity of the property levied upon by the defendant, and replevied from him by the plaintiff The complaint alleges the taking of the store of goods, particularly mentioned in the affidavit theretofore served upon the defendant in the action. The affidavit, for the purpose of describing the goods particularly, is thus made part of the complaint, and contains a schedule in detail of the various kinds and items. The taking of these goods is justified by the defendant’s answer. Ho question was made upon the trial, that the same goods levied upon, were not in fact the goods which were taken and redelivered to the plaintiff, by virtue of the process and proceedings in this action. All the evidence in regard to the identity of the property, was out, when the plaintiff rested, and I am unable to perceive that there was any room for doubt as to what property had been levied upon, and replevied from the defendant.

I am of the opinion, therefore, that the plaintiff, as the case stood, was entitled to recover, and that the nonsuit was erroneous.

A new trial should therefore be granted with costs to abide the event.

Hew trial granted.