Majority
p. 267RICHARDS vs. SCHROEDER. Twelfth Judicial District Court, October, 1857.
Headnote
Chattel Mortgage—Delivery.In the case of a mortgage of personal property, a delivery of the property is necessary to its validity, as against a third person.
But in case of a bulky article, such as a kiln of brick, a removal of the property is not necessary, provided there is an actual delivery of the property, symbolical, or otherwise.
This is an action of replevin, brought to recover possession of a kiln of bricks, which was referred, by consent of counsel, to a referee, who found, as matter of law, that defendant was entitled to a judgment in his favor. Plaintiff’s counsel now moves to set aside the report of the .referee, for error, upon the facts, as found by him. The important facts are sufficiently set forth in the opinion.
Jo Reynolds, for plaintiff.
Jo McCabe, for defendant.
The defendant, as constable of one of the justice’s courts of this city, seised, by virtue of an attachment issued therein, in an action in which one Loring was defendant, the Min of bricks, which forms the subject of this controversy, as the property of the said Loring, He, however, had previously given a bill of sale of the same, to this plaintiff, in the mature of a mortgage, to secure Mm in the pay
p. 268
Bient tif a debt of $500, which Loring owed Mm, and wMch one Webster, who held the goods to sell, on the account of the former, promised to, pay.. Thu referee found that there was no change of the possession of the properly. By this he apparently meant, that the bricks were not actually removed from the yard, where they lay in the charge of Webster.. In this case, such a delivery would not be necessary, it being sufficient that it should be symbolical merely, but it does not appear that anything of tMs kind was ever done. This being the case, Webster remains in possession as bailee of Loring,. and not of this plaintiff, who, therefore, is not entitled to maintain this action.
The motion is denied, and the report of the referee confirmed.