The opinion of the court was delivered by
Phelps, J.The only question in this case is, whether the eontract in question be a mortgage or a pledge. If the former, the *435plaintiff cannot recover; but if the latter, he may recover, provided the proof makes out a conversion.
The distinction between a mortgage and a pledge, is important, as the effects of each are widely different. In a mortgage of a personal chattel, the general property passes to the mortgagee, subject to be redeemed, according to the terms of the contract; and if not redeemed within the time limited, the property becomes absolute in the mortgagee. The consequence is, that the mortgagee may sell or otherwise dispose of the chattel immediately. But in case of a pledge, the general property does not pass, but remains in the pawnor, — the pawnee having only a special property, or lien; and in this case, although the pledge may not be redeemed by the time limited, yet it retains the character of a pledge still.
Although the nature and consequences of these different contracts are thus different, yet it is often a matter of no little difficulty to determine whether a transaction be one or the other; and I know of no criterion, on this point, except the intention of the parties as gathered from their contract. If the contract be in writing, it becomes a question of construction. The written contract is in these words: “ Sold, Barre Feb. 25, 1834, to Emerson, Dudley &i Tor-rey, one bay mare, for eleven dollars and forty-five cents, for which I have received my pay in cash, and delivered said mare to said Emerson, Dudley &; Torrey as their own property. The condition of this bill of sale is such, that if I redeem said mare within four weeks, and pay the expense of keeping, with the above named sum of eleven dollars and forty-five cents and interest, then this bill of sale to be void — otherwise to remain in full force to convey said mare to Emerson, Dudley &• Torrey. — As witness my hand. — - Signed T. J. W.”
It is evident that a mortgage was contemplated by this instrument. It is a mortgage in form and in terms. The general property is passed, subject to a redemption. It is a sale with condition. Had the parties intended to make it a mortgage, as distinguished from a pledge, they could not use stronger or more explicit language. Indeed, they could not add to it, unless they had used the negative language, that it was not to be considered a pledge. To hold the contract a mere pledge, is inconsistent with the terms of the instrument.
The contract being a mortgage, the foundation of the action fails. The horse having never been redeemed, the title of the defendant is absolute; and this absolute title has relation to the date of the instrument.,.-r>iThe general property being in the defendant *436at the time of the supposed conversion, and the plaintiff having only a right of redemption which is now extinct, nothing is left to sustain the action.
Judgment reversed, .and cause remanded.