Gelhaar v. Ross — 1 Hilt. 117

Majority

p. 117

Phillip Gelhaar v. George Ross and M. M. Staniels.

Headnote

Parol proof of the contents of a chattel mortgage having been given'upon the trial without objection, held, that the objection could not be taken upon appeal.

The interest of a mortgagor in chattels, before default, may be levied on and sold under execution. But where, after default in the mortgage, it is foreclosed, and the property passes into the possession of the mortgagee, the officer becomes a trespasser, if he sells the property and delivers possession to a third person, and is liable in damages to the mortgagee therefor,

when a defendant seeks to justify the taking of personal property under an execution against a person other than the plaintiff, it is not sufficient to produce the execution; the judgment on which it was issued must also be proved.

Appeal by tbe defendants from a judgment of tbe Seventh District Court. Tbis was an action to recover damages Tor tbe unlawful taking of personal property. Tbe defendants justified tbe taking under an execution against William Gelhaar. Tbe evidence showed that William Gelhaar was tbe original owner of tbe property, which consisted of tbe contents of a ’drug store. That be gave a chattel mortgage upon it to Phillip Gelhaar on tbe 4lh of December, 1855. That on tbe 17th of December an execution was issued out of tbe Sixth District Court against William Gelhaar in favor of tbe defendant George Ross, and was levied by tbe defendant M. M. Staniels, a constable of tbe city, on tbe property in question on tbe 19th of December. Tbe goods were not, however, removed from tbe store. At tbe time of tbe levy tbe mortgage was due; tbe mortgagee was in possession of tbe property, and bad taken proceedings to sell it. These facts were known to tbe constable at tbe time of tbe levy. On tbe 3d of January, 1856, they were sold under tbe chattel mortgage by Phillip Gelhaar, and bought in by him, and on tbe following day, tbe defendant Staniels having been indemnified by Ross, they were sold by him under tbe execution. They were subsequently purchased back by William Gelhaar for $30, for which sum tbe justice gave judgment. There was no proof of tbe judgment on which tbe execution was issued, nor was tbe chat

p. 118

tel mortgage under wbicb tbe plaintiff claimed title produced, but no objection was made to tbe parol proof offered of its existence and contents. • - .

William B. Stafford, for tbe appellants.

Diefendorf and Aclcer, for tbe respondent.

Tbe plaintiff-.claimed title to personal property under a mortgage. Upon -tbe trial parol proof of tbe contents of tbe mortgage was given, without objection on tbe part of tbe defendant. He cannot, therefore, now make an emotion wbicb should have been stated to tbe justice at that time. If it bad been taken on tbe trial, tbe objection could have been obviated, probably, by producing tbe original mortgage. Tbe rule is well settled, that such objections are of no avail unless made at the trial. On this account tbe motion for a non - suit was property denied.

There is no doubt that the interest of tbe mortgagor, before default .in tbe payment of tbe mortgage, may be levied on and sold by the', sheriff or constable. 1 Com. 295 ; 1 Kiernan, 501, and cases there cited. There is no evidence that such was tbe present case. On tbe contrary, tbe evidence shows that the money secured by tbe mortgage was due, and tbe plaintiff bad taken measures to foreclose tbe mortgage, and was in possession of tbe property, before tbe levy, of wbicb tbe officer bad notice. He was therefore legally in possession of tbe property, and tbe officer as well as tbe party, having full knowledge of these facts, became trespassers when they sold tbe property and delivered possession to third persons. They might have sold tbe interest of tbe mortgagor, but after default in tbe mortgage, and possession on tbe part of tbe mortgagee, and knowledge thereof by tbe parties, they could not legally go further.

There is also a more serious objection to tbe defendants’ appeal, viz., that tbe evidence was not sufficient to make out any justification. Both in tbe answer and tbe evidence, they attempt

p. 119

to justify on tbe ground that tbe goods-were sold under an execution. Tbe proof necessary to sustain suob a defence, when it appears that a stranger bas title and possession of tbe property, is not complete by merely producing an execution, but tbe defendant-must also prove tbe judgment under wbicb tbe execution was issued. High v. Wilson, 2 J. R. 46 ; Parker v. Walrod, 16 Wend. 517 . No sucb evidence was offered, and tbe justification in this respect failed. Tbe plaintiff was entitled to recover any damages be sustained by having tbe property taken from bim.

Tbe defendants cannot complain that tbe justice erred, in adopting tbe lowest value as'tbe amount of tbe damages. If tbe plain tiff is satisfied, tbe defendants might to be also. ‡»

Judgment affirmed.