Howland v. Willett — 3 N.Y. Super. Ct. 607

Majority

p. 607

Howland v. Willett, Sheriff, &c.

Headnote

Where a mortgage of goods expresses no time of payment, it is payable immediately, and no demand of payment is necessary before proceeding upon it.

A clause in the mortgage, that the mortgagor may remain in possession until default be made in the payment, does not make a demand necessary, or prevent the mortgagee from recovering the property from any person who takes it out of the mortgagor’s possession, although no demand of payment has been made.

On the execution of such a mortgage, the title of the mortgagee becomes absolute at law without a demand ; and the mortgagor being a naked bailee of the property, has no interest on which an execution can be levied.

(Before Duer, Mason, and Campbell, J.J.)

April 12, 13;

May 25, 1850.

Replevin' against the sheriff of the county of Queens, for the machinery, tools, and fixtures of a soap and candle manufactory, tried in the supreme court, and the case then transferred. At the trial in July, 184-8, the plaintiff gave in evidence a bond to him executed by II. W. Scott, then the owner of the property, for $1000, dated February 2d, 1847, and a mortgage of the same date by Scott to the plaintiff, upon the personal property in question, conditioned for the payment of the same $1000. No time of payment was expressed, in either the bond or mortgage. By the terms of the mortgage, until default was made in the payment of the money secured by it, Scott was to remain and continue in the quiet and peaceable possession of the property, and the full and free enjoyment of the same. Scott’s residence was in the town of North Hempstead, and the property was there also. The mortgage was filed in the town clerk’s office, February 19th, 1S47, and renewed in 1848.

On the 10th of March, 1847, Dwight and others obtained a judgment against Scott, on which an execution was issued, April 10th, by virtue whereof, the under sheriff of the defendant, on the 17th of April, 1847, levied upon the property in question. The suit was then brought. There was no question made as to the good faith of the mortgage, but the evidence did not show that there had been any demand of payment or of the property, from Scott, before the levy.

p. 608

The defendant insisted that the plaintiff had no right to the possession of the property because no demand of the debt had been made ; and if he had such a right, the defendant could levy on the interest of Scott as mortgagor, he being in the actual possession. The judge ruled that on the evidence the plaintiff was not entitled to recover; and the jury under his charge found a verdict for the defendant. The plaintiff excepted, and moved for a new trial.

A. Child, for the plaintiff.

D. J). Field-, for defendant.

By the Court.

There was no time specified in the mortgage, at winch the money secured by it was to be paid. It was therefore payable immediately, and no demand was necessary to enable the mortgagee to proceed upon it. (Thompson v. Ketcham, 8 John. 146 ; Herrick v. Bennet, ib. 370; Carroll v. Moulton, 3 Denio, 13 .) The clause in the mortgage, that the mortgagor might remain in possession until default, cannot be so construed as to require the mortgagee to make a demand before he could bring a suit. That would be to alter the legal effect of the contract, and to make the money payable only on demand, instead of immediately. In Fuller v. Acker, 1 Hill, 475 , the mortgage was by its terms payable at an impossible time, that is, several years before the date of the mortgage, and it contained the usual clause, as in this case, that the mortgagor might, until default, remain in possession. The court held that the legal effect as to the time of payment was the same as if no time had been specified, and that the money was therefore payable immediately. There was evidence in that case given at the trial, to show that the word “ eight” was by mistake omitted, and that the intention of the parties was to render the mortgage, which was dated in 1837, payable in 1838, instead of 1830 ; but the court held that as between the parties the evidence was inadmissible, although as between the mortgagee and the sheriff, it might be allowed to repel the presumption of fraud. A copy of the mortgage had been filed for

p. 609

several successive years pursuant to the act of 1833, but the court decided that the fact of the filing anterior to the seizure by the sheriff did not work an extension of credit, and that there was nothing in that act at all incompatible with insisting on immediate payment or the effect of the forfeiture. They also held, that by the mortgage and default in payment, the plaintiff became absolute owner at law, however he might, be viewed in equity. The same doctrine was also maintained in Burdick v. McVanner, 2 Denio, 170 , and in numerous other cases.

The title of the plaintiff then, being absolute at law, the mortgagor was a naked bailee of the property, and had no interest which could be the subject of a levy and sale under execution, (Mattison v. Baucus, 1 Comst. 295,) and the defendant by the levy became a trespasser. (Wintringham v. Lafoy, 7 Com. 735; Copley v. Rose, 2 Comst. 115.)

The bill of exceptions does not present the question of fraud, nor does it appear whether or not it was raised at the trial, and we are not called upon to consider it. The charge of the judge, it is true, was in general terms, that upon the evidence in the cause the plaintiff was not entitled to recover ; but this must be taken in connexion with the points which were raised by the counsel. We cannot, in fairness to the judge, construe the charge to have any relation to the bona fides of the transaction, for upon that the jury alone had the right to pass, and the court could not take it away from them. Besides, no exception was taken to the charge on this ground.

We are of opinion that the learned judge erred in his charge, and that there must be a new trial, costs to abide the event.