Baumann v. Cornez

On December 4, 1888, defendant to secure the payment of the sum of $182 owing her, executed and delivered to plaintiff a mortgage upon certain chattels at the time contained in the premises No. 323 West Seventeenth street in the city of New York. The mortgage was duly filed in the office of the register of the city and county of New York, and provided for the payment of the sum secured as follows: Fifteen dollars at the time of the execution and delivery ,of the mortgage and the remainder in installments of six dollars on the Tuesday of each and every second week succeeding the date thereof, commencing December 11, 1888, until the whole sum be paid. The mortgage also contained a clause that upon default in the payment of the sum secured or of any part thereof, or of any of the installments thereof, or in case any attempt to remove or secrete or to sell or dispose of the mortgaged chattels or any part thereof from the premises in which the chattels were then contained without the previous written consent of the mortgagee,then the whole amount of the mortgage debt remaining unpaid should become due and be due and be payable at once without demand, and if not paid the mortgagee should be em

Plaintiff, the mortgagee, thereafter brought replevin proceedings against defendant, the mortgagor, in the district court of the city of Hew York for the eleventh judicial district, to recover possession of the mortgaged chattels. On the trial, the following facts remain undisputed: Defendant having made default in the payment of several installments in accordance with the terms of the mortgage, and having also removed the mortgaged chattels from the premises Ho. 323 West Seventeenth street without the previous written consent of the mortgagee, the latter prior to the commencement of the proceedings demanded possession of the chattels from the defendant, which was refused by her. Defendant in defense against plaintiff’s claim contended that plaintiff was not entitled to possession of the chattels because prior to the demand therefor no demand was made of her for payment of the mortgage debt The trial justice apparently found that defendant’s contention was well taken, and rendered judgment in her favor, from which plaintiff has appealed to this court

The facts clearly established the plaintiff’s right to the possession of the mortgaged chattels, and the same should have been awarded to him. The legal title to the chattels was in the mortgagee, and on default by the mortgagor in the performance of the condition to be performed by her his title and right of possession became absolute in law. Briggs v. Oliver, 68 N. Y., 336 ; Parshall v. Eggert, 54 id., 18; Miner v Judson, 2 Hun, 441 ; Brown v. Bement, 8 Johns., 96 .

And though the mortgage debt be payable in installments, the title and right of possession of the mortgagee becomes as perfect upon a default in the payment of an installment as it does upon a default in the payment of the whole debt. Robinson v. Wilcox, 2 N. Y. Leg. Obs., 160 ; Halstead v. Swartz, 46 How., 289 .

The mortgagor is in default if he permits the time appointed for payment to pass without making the same, and upon such default the mortgagee’s right to possession accrues without prior demand for payment of the mortgage debt, unless the mortgage in express terms requires such demand. And it has been held that a demand by the mortgagee of payment of the installments past due constitutes' a waiver of the breach of the condition concerning payment which he cannot afterwards recall and insist upon forfeiture. Van Loan v. Willis, N. Y. Com. Pleas, 13 Daly, 281 .

In the present case, however, the parties have expressly stipulated that upon default in the payment of the sum secured, or

The judgment should be reversed and a new trial ordered.

Bookstayer, J., concurs.