The general question in this case is, whether, upon the facts reported, the action of trover can be maintained. It is contended for the defendant, that if any action could be maintained, it should be an action upon the case. But we are of opinion that trover is the proper action. By the mortgage deed from Rice, the owner of the goods which were sold by the defendant, the plaintiff acquired the legal title thereto; and although Rice afterwards formed a partnership with Belcher, and the same goods were put into the copartnership by him, and were used and treated as partnership property, yet this did not divest the plaintiff’s right of property. Nor did the conveyance of the goods to Belcher, in trust for the payment of the partnership debts, convey the legal title. Before that conveyance, the plaintiff’s mortgage had been recorded; and this conveyance was rightly rejected.
The remaining objection is, that the plaintiff had not the *209possession, nor the right of possession, of the goods mortgaged ; the mortgage having been given to secure a note payable on demand, and it being agreed that the mortgagor should have possession until condition broken ; so that until the demand of payment of the mortgage debt of the mortgagor, the mortgagee would not have the right of possession. We are, however, of opinion that no demand on the mortgagor was necessary. By the Rev. Sts. c. 90, § 78, the officer was authorized to attach and take possession of the property mortgaged, and thereby to terminate the possession of the mortgagor. The demand of payment of the mortgage debt was then rightly made on the attaching officer, and he was thereupon bound, by the express words of the statute, (§ 79,) to pay the same within twenty four hours, or to restore the property to the mortgagee. It is admitted that, before the commencement of this action, the officer sold the property without paying the mortgage debt. This was a conversion of the property, of which the plaintiff certainly had the right of possession. In this respect, the cases cited by the defendant’s counsel are not applicable. In the case of Forbes v. Parker, 16 Pick. 462, it was held that an action on the case would lie by a mortgagee against an officer who attached and sold the mortgaged property as the property of the mortgagor, without payment of the mortgage debt. But in that case, the court considered that the swine mortgaged had been let by the mortgagee to the mortgagor, for the term of six months, for the purpose of fattening and preparing them for market, and that the six months had not expired at the time of the sale ; and that the plaintiff had only a reversionary interest in the property. The mortgage debt also was not payable until the expiration of the six months. Whether by the revised statutes the action of trover in such a case could be maintained or not, we are well satisfied that it is the proper form of action in the present case. In the case of Forbes v. Parker, there was no demand on the officer, nor did he proceed under St. 1829, c. 124. Nor did that statute ccr.tain the provision contained in the Rev. Sts. c. 90, §§ 78, 79, that the *210mortgage debt should be paid within twenty four hours after demand, or the property be restored to the mortgagee. By that provision, the plaintiff was unquestionably entitled to the possession of the property attached. He had the legal title, and the sale by the officer was a conversion, which, it is admitted, was made before the commencement of this action,
Exceptions overruled