It is conceded on behalf of the plaintiff in error, that there was no error in the charge of the court below to the jury, on the second point made in the instructions asked, and which seems to be in accordance with the rule in Shurtleff v. Willard, 19 Pick. R. 202. But it is insisted that the court erred in charging the jury as follows : “ That although, by the terms of the mortgage, the mortgagor was to retain possession of the property until default made in the payment of the debt; yet if his possession was invaded, and the property taken out of his hands by a third person, as in the present case, by levy, the mortgagee would at once be entitled to the possession, and to maintain replevin for the property.”
Where a mortgagor of personal property, by the express terms of the mortgage, retains the possession of the property until condition broken, such possession being coupled with a beneficial use, but not for purposes of consumption, the special interest or property of the mortgagor is subject to execution or attachment by his other creditors.
The right to the immediate possession of the property in controversy, in this case, being essential in order to maintain replevin, that action cannot be maintained by the mortgagee of chattels before condition broken, when, by the terms of the mortgage, the mortgagor is entitled to retain the possession and use until the maturity of the debt.
In such case, if the security of the mortgagee be placed in jeopardy by proceedings on behalf of other creditors of the mortgagor, the appropriate remedy is by a proceeding in equity.
Judgment of the district court reversed, and cause remanded.