Brush v. Evans

Headnote

Chattel Mortgage—right of mortgagor after default—Stoddard v. Denison, 2 Sweeney, 54, followed as to action for wrongful destruction of such eguity.

Appeal by defendant from judgment for plaintiff entered upon verdict of jury, and from order denying motion for new trial, made upon the minutes.

The case below resolved itself into an examination of the rights of the plaintiff as a mortgagor of chattels, against the defendant, her mortgagee. There had been, as was determined by the court, a default by the plaintiff in performance of the condition. The defendant had sold

under the mortgage. The plaintiff claimed that the sale Was intentionally so noticed and conducted that the chattels did not call for as much as they would have sold for on a fair sale, and that she was entitled to recover as damages the full value of the goods sold, less the amount due upon the mortgage. The jury was charged that such were the rights of the plaintiff. Proper exceptions were taken by the defendant.

The Court at General Term (after stating the facts as above), said :—“ The case of Stoddard v. Denison ( 2 Sweeny, 54 ), makes it necessary to hold that after default, the interest of the plaintiff, as to the chattels, was only an equity of redemption, and that to enforce this right it was requisite, primarily, that the plaintiff should pay, tender, or offer in the complaint to pay the amount due upon the mortgage. There may be some plausibility in the proposition that if the equity of redemption be destroyed wrongfully, an action for damages will lie. This was involved in the case cited, and we should follow it.