Dean v. Cushman

• Decision Date: 29 July 1901
• Citation: 50 A. 85,95 Me. 454
• Parties: DEAN v. CUSHMAN.
• Court: Maine Supreme Court

50 A. 85

95 Me. 454

DEAN

v. CUSHMAN.

Supreme Judicial Court of Maine.

July 29, 1901.

(Official.)

Report from supreme judicial court Penobscot county.

Trover by Charles I. Dean against Linwood H. Cushnian. Case reported on agreed statement of facts. Judgment for defendant.

The material portions of the agreed statement are as follows.

The plaintiff claimed title to the hay in question by virtue of a chattel mortgage given to him by Frank W. Oakes, of Brewer, on August 18, 1808, for a valuable consideration, duly executed and properly recorded on that day. The property mortgaged was in the possession of the mortgagor at the time of sale to defendant. The defendant purchased the hay in question of said Frank W. Oakes, at Ellsworth, on the l6th day of September, 1898; and the same was then and there placed by said Oakes in the defendant's barn in Ellsworth, and some time thereafterwards the defendant paid Oakes the sum of $10.25 for said hay. It did not appear that at the time of the purchase of said hay by defendant he had any actual knowledge of the existence of the plaintiff's mortgage. The hay was actually included in and covered by the chattel mortgage above referred to, said mortgage being unsatisfied and valid at the date of the writ. No demand for the hay was made on the defendant before the commencement of the action. No other evidence of the conversion was offered. Defendant claimed that there being no demand prior to the commencement of the action, and no evidence of the destruction or sale of the property by the defendant, the court should find that there was no conversion, and that the action could not be maintained, as a matter of law.

The court ruled otherwise, and gave Judgment for the plaintiff for $10.25, finding the facts above set forth to be true, to which ruling the defendant excepted.

Argued before EMERY, WHITEHOUSE, STROUT, SAVAGE, and PEABODY, JJ.

P. J. Martin and H. M. Cook, for plaintiff.

J. A. Peters, Jr., for defendant.

SAVAGE, J. Trover for the conversion of a small quantity of hay.

The plaintiff is mortgagee, under a mortgage which provided that the mortgagor might continue in possession of the hay until the conditions of payment were broken. The defendant was a purchaser from the mortgagor before condition broken. At the time of the purchase the defendant had no actual knowledge of the existence of the plaintiff's mortgage. The agreed statement shows that the hay at the time of the sale was in the possession of one Oakes, the mortgagor; that upon the sale being made the hay "was then and there placed by Oakes in the defendant's barn," and was afterwards paid for by the defendant. No demand for the hay was made before the commencement of the action, and no evidence of conversion was offered, other than is contained in the foregoing statement of facts. The judge below ruled, as matter of law, that the action was maintainable without proof of demand and refusal, and to this ruling the defendant excepted.

Under the mortgage, the mortgagor had the right of possession. He also had the right to redeem the hay from the mortgage. This right to redeem he could sell; and if he sold that, and only that, he might lawfully deliver possession of the property to the purchaser. White v. Phelps, 12 N. H. 382. But, if he sold the entire property,—the mortgagee's interest as well as his own,—such a sale would be unlawful as against the mortgagee; and, accompanied by the removal and delivery of the hay by the mortgagor, it would constitute a conversion on his part. Millar v. Allen, 10 R. I. 49; White v. Phelps, 12 N. H. 382; Ashmead v. Kellogg, 23 Conn. 70. Such a sale and consequent conversion would put an end to his right of possession, and Immediately revest that right in the mortgagee. Ripley v. Dolbier, 18 Me. 382; Grant v. King, 14 Vt. 367; Forbes v. Parker, 16 Pick. 462; Whitney v. Lowell, 33 Me. 318.

But, although the mortgagor was clearly guilty of a conversion by the sale and removal of...