Prout v. Root
| Decision Date | 05 January 1875 |
| Citation | 116 Mass. 410 |
| Parties | Richard Prout v. Graham A. Root |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Argued September 8, 1874
Berkshire. Tort against the sheriff of the county of Berkshire for the official misconduct of Horace S. Streeter one of his deputies, in converting to his own use a span of horses, alleged to be the property of the plaintiff by virtue of a mortgage to him from one C. I. Ray. The answer set up a special property in Streeter by virtue of an attachment upon a writ in an action in which Richard Prout was defendant. Trial in the Superior Court, before Allen J., who allowed a bill of exceptions in substance as follows:
The plaintiff testified that he sold the horses to Ray on December 30, 1871, and took his promissory note therefor for $ 330, payable on demand, with interest, and also a mortgage of the horses to secure the payment of said note; that on the day of the sale, Ray took possession of the horses, and they remained in his possession about five weeks, when the plaintiff demanded payment of the note of Ray, who declined to pay it, and thereupon the plaintiff demanded possession of the horses, and they were immediately surrendered to him by Ray; that the horses remained in his possession some three or four days, when they were attached by Streeter.
There was no evidence tending to prove that the plaintiff had ever given the notice of foreclosure as required by statute, or that Ray had ever offered to redeem the horses. The plaintiff put in other evidence tending to corroborate his testimony and rested his case.
The defendant introduced evidence tending to prove that the horses were delivered up to the plaintiff by Ray, in satisfaction of the mortgage, and that the note and mortgage were fictitious, and intended to keep the horses from the reach of the plaintiff's creditors.
The defendant requested the judge to instruct the jury "that in no view of the case was the plaintiff entitled to recover and that they must find a verdict for the defendant." The judge declined to so instruct the jury, but did instruct them, among other things not excepted to, that if the jury were satisfied from the evidence that the horses were delivered up to the plaintiff by Ray on the mortgage for the purpose of foreclosure, they were not liable to attachment upon the writ against the plaintiff while so held, and before foreclosure, and the jury must in that case find a verdict for the plaintiff. The verdict was for the plaintiff, and the defendant alleged exceptions.
Exceptions overruled.
N. H. Bixby, (F. O. Sayles, with him,) for the defendant.
H. L. Dawes & J. C. Wolcott, for the plaintiff.
A mortgage of personal property transfers the general property, and, in the absence of any agreement to the contrary, the immediate right of possession. The title is subject to a defeasance; but unless it has been divested by a performance of the condition, or by the exercise of the mortgagor's right to redeem, the mortgagee can alone maintain an action against a stranger for its conversion. It differs in this respect from a pledge, where only a special property passes and the general ownership remains in the pledgor. At law, and without statute intervention, the interest of the mortgagor is not liable to be taken on execution, because it is a mere equitable interest, and where there is no legal right there can be no legal remedy Badlam v. Tucker, 1 Pick. 389, 399.
The precise question here presented is, whether the interest of a mortgagee of personal property in his possession, after breach of condition, and before foreclosure, is liable to be so taken. We are referred to no case in which the point has been distinctly passed upon by this court. In the decision of it, regard must be had to existing legislation, and to the course of adjudication with reference to similar rights of property.
There is no substantial difference, at common law, in...
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Graham v. Blinn
...Ramsdell v. Tewksbury, 73 Me. 197; Vose v. Handy, 2 Me. 322; Robbins v. Bacon, 3 Me. 346, 349; Crain v. Paine, 58 Mass. 483; Prout v. Root, 116 Mass. 410. See, also, Mott Clark, 9 Pa. 399; Pryor v. Wood, 31 Pa. 142. As this is an equitable suit, the rights of Thorinly certainly ought to be ......
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...as distinguished from the equitable, title. This seems to be the holding in Massachusetts and Alabama. Crane v. Pain, supra; Prout v. Root, 116 Mass. 410; v. Rogers, 21 Ala. 498; see, also, Harman v. Barhytt, 31 N.W. 488, and note. Most of the cases, which I have been able to find, where th......
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