Brackett v. Bullard

Shaw, C. J.

On the trial in the court of common pleas, two exceptions were taken by the counsel for the defendant, which were sustained by the court. First, that an action of trespass would not lie, because the mortgagees had not taken possession of the property pursuant to St. 1843, c. 72, $ 1. This statute merely directs that the mortgagee shall take possession of the property, and hold it sixty days, before the mortgagor’s right to it shall be forfeited. But it does not *310affect the rights of third persons. By the general rules of law, a mortgage of goods is a transfer, defeasible indeed, on a condition subsequent, still a transfer, which vests the general property in the mortgagee. Then, when there is no express stipulation to the contrary, the right of possession follows the right of property; and a right of present possession is sufficient to enable one to maintain trespass. Ham mond’s Nisi Prius, 219. Holly v. Huggeford, 8 Pick. 73.

The second exception is, that notice of their demand was not given by the mortgagees to the officer or creditor, within a reasonable time. What is a reasonable time, on a given state of facts, where there is no positive law fixing the time, is a question of law. Smith v. Newburyport Marine Ins. Co. 4 Mass. 670. Johnson v. Sumner, Housatonic and Lee Banks v. Martin, and Legate v. Potter, 1 Met. 172, 294, 325. Upon the facts stated in the bill of exceptions, this court are of opinion, that the decision of the court of common pleas was right.

As this last point is decisive against the plaintiffs’ right to maintain the action, although the first exception is sustained the court are of opinion that there must be

Judgment on the verdict for the defendant.

Note. Since this decision was made, it has been decided (Lyon v. Coburn, March term 1848, in Suffolk) that the qualified right of a creditor to take the mortgaged personal property of his debtor, upon the terms and in the manner provided by statute, does not extend to taking on execution, but only to an attachment on mesne process ; and therefore, if judgment creditors would resort to such mortgaged property of their debtors for satisfaction, it can only be done by attachment in an action of debt on the judgment. But this objection was not taken to the entire ground of defence relied on in the foregoing case, and the attention - of the court was called only to the points stated in the bill of exceptions.