By the Court,
PAINE, J.The court below erred in instructing the jury that their verdict should depend on the question whether Williams, the defendant and mortgagee, or Douglass & Brown, the mortgagors, had possession of the property. The authorities sustain the position, that where *295the mortgagor bas, as against tbe mortgagee, tbe right to the possession of the property for any definite period time, there his interest may be attached, or seized and sold, subject to the mortgage ; but that if the mortgagee is in possession or has an - immediate right to the possession, then that right cannot be defeated by the levy of an attachment or execution.
Many eases go so far as to say, that after forfeiture the mortgagor has no interest capable of being seized and sold. Eggleston vs. Mundy, 4 Gibbs (Mich.), 295, is of this kind, and cites many others to the same effect. Other cases imply the same thing by affirming that where the mortgagor has the right to retain the property for a definite period of time, that is such an interest as may be seized and sold. Bank vs. Gravy, 1 Barb., 549-550; Hull vs. Carnley, 1 Kern., 505; Beach vs. Derby, 19 Ill., 622; Bailey vs. Burton, 8 Wend., 347-8; Wheeler vs. McFarland, 10 id., 322; Randall vs. Cook, 17 id., 57-8
The only doubt which could arise upon the point would seem to grow out of the language of this court in Cotton vs. Marsh, 3 Wis., 241, and Cotton vs. Watkins, 6 id., 635. But I am unable to come to the conclusion that either of those cases sustains the position that the right of a mortgagee of chattels to take possession upon a forfeiture or according to the provisions of the mortgage, can be defeated by the levy of an attachment upon the interest of the mortgagor. It is true, the language in Cotton vs. Marsh would seem to extend the right to seize and sell the mortgagor’s interest, to cases after forfeiture, and even where the mortgagee was in possession. Yet it is said expressly, that if the mortgagee is in possession, the officer cannot deprive him of it. This shows that in the opinion of the court, there was some mode of seizing and selling the mortgagor’s interest, without disturbing the possession of the mortgagor. And if there is such a mode, it is obvious that it may be pursued equally well although the mortgagee is allowed to take possession after the levy, where his right to do so accrues thereafter. The case of Randall vs. Cook, before cited, shows that although a levy is properly made before forfeiture, while the mortgagor has *296the right to the possession, yet the mortgagee may, after maintain replevin against the officer for the deten-^on 0f ^ goods, though not for the taking. When therefore this court, in Cotton vs. Marsh, says that the mortgagee cannot be deprived of his possession, and that in all cases the. taking by the officer must be “ subservient to the paramount interest of the mortgagee,” it seems to me to follow, that if the officer seizes while the property is in possession of the mortgagor, the mortgagee still retains his right of taking possession according to the terms of his mortgage, upon forfeiture or otherwise, just as though the property was still with the mortgagor. All the cases say that the seizure must be subject to the mortgagee’s right, and this right of taking possession is one of those rights subject to which the seizure must be made. And the same reasoning which would prevent the officer from depriving the mortgagee of possession, would also prevent him from being deprived of the right to take possession.
So too in Cotton vs. Watkins, the court, while recognizing the general right of creditors to reach the mortgagor’s interest, expressly holds that the mortgagee has the “ right to the possession for the purpose of obtaining the payment of his debt, and whosoever wrongfully takes the goods from his possession before this is accomplished, is a trespasser.” What would be the precise method in which the officer would sieze or sell the mortgagor’s interest after forfeiture, and notwithstanding the possession of the mortgagee, if those two cases shall be held to have established such right of seizure and sale, they do not explain. Both cases refer to our statute authorizing the sale on execution of the interest of the pledgor in property pledged. But it seems to me there is such a marked difference between the rights of a pledgee and a mortgagee atlaw, as prevents that statute from having a very direct bearing upon the question. In Stief vs. Hart, 1 Comstock, it was held, under a similar statute in New York, that the officer might deprive the pledgee of the possession temporarily for the purpose of a sale on execution of the pledgor’s interest, but that possession could not be dé-ivered to the purchaser without paying the debt due the *297pledgee. The decision was made by a court equally divided, and consequently, so far as its authority is concerned, it as much one way as the other. This court, in Cotton vs. Marsh, certainly did not extend that decision to the case of a mortgagee, for they expressly held that the officer could not deprive the mortgagee of possession. Yet our statute contained a provision similar to that on which the decision in Stief vs. Hart was based, that personal property must be within view at the sale. Sec. 59, chap., 102, R. S. 1849. see no way of explaining the language of this court in the cases referred to, except on the theory that they held with the judges in Stief vs. Hart whose opinions did not prevail, that the property might be sold by the-officer under the statute relating to pledges, and in other similar eases, without taking actual possession or disturbing the possession of the mortgagee or pledgee. If this conclusion should be sustained, it would furnish a clear and simple rule as a guide for officers in such cases, which would never be liable to the objection of suspending or interfering with a prior paramount right, while professing to proceed subject to it.
But however this may be, and even though the prevailing opinions in Stief vs. Hart are held correct as applicable to pledges, and even though the same rule should be extended to a sale, on execution, of the interest of a mortgagor of chattels, I think it clearly cannot be extended to an attachment. In the first place, that decision was based entirely upon the positive provisions of the statute; and certainly that reason cannot be relied on in favor of the attachment, for the statute provides only for a sale on execution. And to sustain such a right in the case of an attachment, would occasion a much more serious interference with the rights of the mortgagee, than it would in the case of an execution. In the latter, there would be nothing to do but to sell immediately; while in the former, the attachment is levied usually at the commencement of the litigation, which may last for years. And it would be a very serious wrong and injury, if the rights of a mortgagee, to collect his debt out of the property, or to take it and hold it unless the mortgagor should proceed to *298redeem, could be suspended during all that time. I do not think such is the law.
The court below, therefore, should have told the jury that if the appellant had a chattel mortgage upon the • property, by the terms of which, in consequence of forfeiture or otherwise, he had a right to the possession of the property, as against the mortgagor, at the time he took it, then he was not liable to this action for such taking.
It might also be suggested, that if the facts were such as would sustain this action, the rule of damages would be the value of the mortgagor’s interest, that is, the value of the property over and above the mortgage debt. See Ward vs. Henry, ante, p. 239. The judgment is reversed, with costs, and a new trial ordered.