Several objections are made to the legality of the determinations by the court below, which I shall distinctly consider.
1. For the purpose of establishing the plaintiff’s claim for the two hundred dollars, specified in the condition to his bill of sale, he offered the deposition of one William Hollenbeck. The defendant objected to its admission; and the court excluded it. This is all that appears ; the ground of objection or of exclusion, being no where stated. There are not in the motion sufficient facts, to enable the court to see, that the exclusion of the testimony was erroneous. By the rule of this Court, (6 Conn. Rep. 327.) in all motions for a new trial, the precise point made by the party, and the precise opinion expressed by the court, must appear on the face of the motion. The court is bound to consider the determination below to have been correct, on the common presumption, that the judge exercised his jurisdiction soundly, until facts are presented from which the opposite appears.
2. The admission in evidence of the execution levied on a part of the goods in question, and not returned to the clerk’s office, has been objected to.
It is established law, that mesne process must be returned, or that the arrest or attachment by virtue of it, is tortious ; the end of the proceeding being to compel the defendant to appear and answer the plaintiff. But if an execution is duly served on chattels, and is not returned, the proceeding is valid; for the plaintiff has obtained the effect of his suit, and nothing afterwards is to be done on his part. Hoe’s case, 5 Rep. 90. Ashborough’s case, Cro. Eliz. 17. Rowland v. Veale & al. Cowp. 20.
3. An objection was made, at the trial below, that the aforesaid bill of sale was never delivered ; and the court charged the jury, that if such was the fact, the instrument had no legal effect; at the same time, they were instructed, thqt the delivery was proved, if they credited the testimony of the w itness. It appears on the motion, that the delivery of the bill of sale wras admitted, by the defendant; and hence, it is now- urged, that the court ought not to have committed it, as a contested point, to the jury. There was nothing in the observations of the judge to withdraw the attention of the jury from the above admission: and it is a fair presumption, that it was regarded, and had its proper weight.
*2314. The jury were charged, that if the property comprised in the bill of sale was not delivered, but was retained in the possession of the vendor, the above instrument, prima facie, was fraudulent, and even conclusively so, unless some good reason repelling the presumption of fraud should appear to the satisfaction of the jury. It is now objected, that this satisfactory explanation must be given to the court, and not to the jury; and to this end cases are cited, in which an expression to this effect was made. Burrows v. Stoddard, 3 Conn. Rep. 431. Patten v. Smith & al. 4 Conn. Rep. 450. 455. Swift & al. v. Thompson, 9 Conn. Rep. 63. By the word court, in the cited cases, undoubtedly is meant, the forum which is to decide ; and what forum is there but the jury, acting under the direction of the court ? The jury must pass upon this, as well as on every other fact in the case ; and the objection, not a little hypercritical, is unquestionably groundless.
5. I now come to consider a more important objection made in the case. The court charged ihe jury, that if the plaintiff was never in possession of the mortgaged premises, he had no legal right to the crops which grew thereon ; and as to the three small articles of property, on which the execution was not levied, if they were never in his possession, in respect of them, he could not maintain his action. This part of the charge is strongly objected to. In opposition to it, the following principle has been advanced ; that a conditional bill of sale by way of mortgage, not accompanied or followed by possession in the vendee, invests him with a legal title to the property, and as against a wrong-doer, authorizes an action of trespass.
It is an established principle of law, that the action of trespass is founded on possession only, and not on title. An injury to the plaintiff’s possession is the gist of his action ; and if this indispensable fact does not appear, the suit cannot be sustained. 1 Chitt. Plead. 175. Arch. Pr. 216. Lambert v. Stroother, Willes 218. 221. Catteris v. Cowper, 4 Taun. 547. Dyson & al. v. Collick, 5 Barn. & Aid. 601. Ricker & al. v. Kelly & al. 1 Greenl. 117. Duke of Newcastle & al. v. Clark & al. 8 Taun. 602. S. C. 2 Moore 666. Graham v. Peat, 1 East 244. Hence, a lessee cannot support this action before entry; (I Ld. Rayrn. 367.) nor an heir at law against an abator; (Com. Dig. tit. Trespass. B. 3.) nor can a bargainee, although the statute of uses transfers the possession. Com. Dig. *232tit. Trespass. B. 3. Berry v. Bowes, 1 Vent. 361. The proof„ of title does not dispense with the proof of possession. It is for this conclusive reason, that the action of trespass is adapted and intended to* give the possessor a remedy for an injury committed. Whether the plaintiff’s title is derived from an absolute bill of sale, or one on condition subsequent, as a mortgage is, there exists no difference. Possession, in both cases, is equally indispensable; and for the same reason. To sustain the plaintiff’s action, it is devolved on him to show, that the ven-dee of a conditional bill of sale, by way of mortgage security, although never in the actual possession of the property conveyed, is deemed in law to be constructively possessed: In other words, that the possession of the mortgagor is, in legal consideration, the possession of his mortgagee. No such principle is to be found in any elementary book; nor is it either expressed in, or to be implied from, any decided case. If such be the law, it is yet to be declared.
If the mortgagor were strictly a tenant at will to the mortgagee, there might be some reason for the assertion, at least, so far as relates to the land mortgaged, that the mortgagee not in possession might maintain trespass. He might, perhaps, be considered as the servant of the mortgagee. But although the mortgagor has sometimes been said to be a tenant at will, the expression, derived from a supposed analogy, is clearly incorrect. In one particular, at least, he resembles a tenant at will, as to the right, at his pleasure, to terminate the mortgagor’s possession ; but in other most important respects, there is no analogy. No rent is reserved, or is payable, by the mortgagor, for the use of the mortgaged property; and to the emble-ments the mortgagor is not entitled, if the mortgagee, before severance, enters into the possession ; the opposite of which is true, in respect to a tenant at will. The tenancy of a mortgagor is sui generis : and the nature of it is ascertainable, not from any technical denomination, except, that of mortgagor; but from the source and properties of his estate.
The mortgagor derives no estate from the mortgagee, but transfers one, as a security for his debt.
In the first place, he is the owner of the estate mortgaged in fee simple ; and the mortgagee has a lien upon it, equivalent to a chattel interest. This point is unquestionably settled, in England and in this country, by extremely numerous determinations. (So -numerous and familiar, that it is unnecessary to *233cite them.) Ilis estate, then, whatever it is, is inherent in him, / . . ... . and not derived from the mortgagor; and sois his This subject, however, need not be discussed ; for there is one consideration of a nature so conclusive as*effectual]y to repel the plaintiff's claim.
The mortgagee has no right to the emblements, unless he takes possession of the estate mortgaged; and when severed by the mortgagor, they become his property absolutely, and without any liability to account for them. 1 Pow. on Mort. 232. 2 Pow. on 3fort. 1024, 5. 4 Kent’s Comm. 151. 155. 158. 2 Swift’s Dig. 166. 168. Colman v. Duke of St. Albans, 3 T cs. jun. 25. Drummond v. Duke of St. Albans, 5 Ves. jun. 433.
From the brief discussion above, it is unquestionable, not only that the mortgagee was not constructively possessed of the estate mortgaged, but that the property demanded by the plaintiff, severed from the said estate, by the mortgagor, when in possession, was absolutely and exclusively his.
The cases cited for the plaintiff, have no bearing on the point of controversy. They either regard the mortgagee’s title to the mortgaged estate; (4 Kent’s Comm. 132. Homes & al. v. Crane, 2 Pick. 607. 610.) or the constituents of a fraudulent conveyance; (2 Stark. Ev. 617.) or the action of trover; (Bul. N. P. 33. Gordon v. Harper, 7 Term Rep. 9.) or the undisputed principle, that he who has the actual or constructive possession of property, at the time of an injury done, may maintain trespass.
1 would not, therefore, advise a new trial in this ease.
The other Judges were of the same opinion.New trial not to be granted.