This is an action of trover for books, stationery, &c., described in the writ, which bears date September 10th, 1846, and alleges a conversion by the defendant July 17th, 1846.
The articles, which are the subject of the suit, were once the property of one Judkins, of Lowell, who made a mortgage of the same to Yarney and Burnap, on the 28th of April, 1846, which was recorded the same day. On the 19th of June, 1846, Judkins made a second mortgage of the same property to the plaintiff, which was recorded June 20th, 1846.
After these two mortgages, Judkins remained in possession of the property up to the 30th day of June, 1846, on which day, the defendant, as marshal, by virtue of a writ in favor of Charles T. Gill, against Judkins the mortgagor, took possession of all the property in Judkins’s store, and put in a keeper.
On the 7th of July, 1846, the plaintiff made a written demand on the defendant, pursuant to the statute relating to the attachment of mortgaged personal property ; and on the 8th of July, Yarney and Burnap made a similar demand, as first mortgagees, on the defendant, stating their mortgage pursuant to the statute.
Within ten days from the time of the demand by Yarney and Burnap, the attorney for Gill, the attaching creditor, agreed with Yarney and Burnap, that the defendant might remove a portion of the property and the keeper; that Yarney and Burnap should take possession of what was left by virtue of their mortgage, and apply the proceeds to pay the mortgage debt; and that Gill should pay the balance of their claim not *596satisfied by the property. This agreement was performed by all parties. But a formal assignment of the mortgage was not executed till February 12th, 1847. The goods taken by defendant were sold on the execution, on the 6th of February, 1847.
On the 16th of July, 1846, Varney and Burnap took possession of all the property found in Judkins’s store, by virtue of their mortgage, and proceeded to sell the same with the consent of Judkins and Rugg. The proceeds were insufficient to pay their mortgage debt, by about $200; and the deficiency was paid by Gill. Varney and Burnap executed an assignment to him on the back of the mortgage.
After the assignment to him, Gill, on the 1st of December, 1847, gave due notice to Judkins in order to foreclose the mortgage.
The agreement to sell by Varney and Burnap was signed by Judkins and Rugg, on the 21st of July, 1846.
After these demands, a portion of the property was removed from the store by the defendant, with the consent and by the agreement of the first mortgagees. The removal of this property by the defendant could not give the plaintiff a right of possession; the first mortgage remaining in full force, and the mortgagees insisting on their rights under it. The case then stands thus; that at the time of the plaintiff’s demand on the defendant, and at the time of the commencement of this suit, the legal title to the property and the right of possession were in the first mortgagees. It is a clear and acknowledged principle, that to maintain trover, the plaintiff must have not only the property of the articles, but the right of present possession. Now, when the plaintiff made his demand on the defendant, and instituted this suit, he had only the right to redeem as second mortgagee, and had not the right of present possession. It is apparent, therefore, that the present action cannot be maintained.
Questions were discussed at the bar, in relation to the effect of the agreement to sell the property, and as to the assignment of the firs., mortgage, and as to the measures taken to *597foreclose that mortgage. But it would be wholly unseasonable to consider these questions here, as it is certain that they can have no bearing whatever upon the decision of the present case.
The plaintiff, at the time of the institution of the suit, having only a right to redeem as second mortgagee, without any right to present possession, cannot maintain this action; and, therefore, according to the conclusion of the report, a nonsuit must be entered.