Ramsdell v. Tewksbury

• Decision Date: 20 February 1882
• Citation: 73 Me. 197
• Parties: JOHN H. RAMSDELL v. JESSE B. TEWKSBURY.
• Court: Maine Supreme Court

73 Me. 197

JOHN H. RAMSDELL v. JESSE B. TEWKSBURY.

Supreme Judicial Court of Maine.

February 20, 1882

Replevin for a wagon. The wagon was sold by the warden of the state prison to defendant, who gave to the warden a mortgage of the wagon to secure notes given as a consideration for the sale. The warden sold and delivered the notes and mortgage to the plaintiff, indorsing the notes, but not indorsing or assigning the mortgage by any writing. The wagon itself was never delivered to the plaintiff, and was never in his possession. The ruling was that the action could not be maintained, because the mortgage had not been assigned in writing to the plaintiff, he having had a delivery of the mortgage but not of the wagon; and a nonsuit was entered upon that ground. For a decision of the point raised by the ruling the case was reported for the full court.

J B. Peakes, for the plaintiff.

The mere delivery of a real estate mortgage and notes with an assignment in writing conveys no title in the land, it gives only an equitable interest, Stanley v. Kempton, 59 Me. 472. But the same rule does not apply to mortgages of personal property because the title to that passes by a mere delivery, real or constructive.

Here warden Rice had the title to the wagon and could complete the sale to plaintiff without a delivery. Ludwig v Fuller, 17 Me. 162; Webber v. Davis, 44 Me. 147; Cartland v. Morrison, 32 Me. 190; Parsons v. Dickinson, 11 Pick. 354; Lanfear v. Sumner, 17 Mass. 113; Stewart v. Hanson, 35 Me. 506; Flanders v. Barstow, 18 Me. 357.

The New Hampshire court has several times held that the indorsement and delivery of the notes secured by mortgage of personal property and delivery of the mortgage passed the title to the mortgaged property. See also, 2 Burrows 979; Green v. Hart, 1 Johnson 589; Powell on Mortgages, 1115, 1116; Washburn v. Jacobs, Somerset Co. December term, 1876, (not reported.)

The plaintiff was subrogated to all the rights of the warden. Smith v. Porter, 35 Me. 287.

C. A. Everett, for the defendant, cited: Crain v. Paine, 4 Cush. 487; 2 Hilliard, Mort. 454, 455.

VIRGIN J.

Can the indorsee of a negotiable promissory note secured by a chattel mortgage, transferred at the same time but not assigned in writing, maintain replevin for the mortgaged property in his own name against the mortgagor? Our opinion is that he cannot; but that being owner of the debt and equitable, though not legal assignee of the mortgage, he may, in the absence of any express or implied stipulation to the contrary, bring such an action in the name of the mortgagee who holds, in such case, the legal title in trust for such assignee's benefit.

The remark is quite common in the books that a mortgage of chattels vests the title thereof in the mortgagee. But an executed mortgage, even when recorded as provided by R. S., c. 91, § 1, does not convey the absolute title to the mortgagee. In the absence of any express or implied stipulation to the contrary, he has the right of immediate possession of the mortgaged property; Pierce v. Stevens, 30 Me. 184; and may maintain replevin therefor even before condition broken; Pickard v. Low, 15 Me. 48; but his interest is such that before foreclosure it cannot be attached, or seized on execution; Lincoln v. White, 30 Me. 291; Prout v. Root, 116 Mass. 410; and tender of performance of the condition, ipso facto, puts an end to his interest, and restores the right of immediate possession to the mortgagor, who may enforce this right by replevin and recover damages for withholding it. R. S., c. 91, § 3; stat. 1880, c. 193, § 3. The property may also be attached on a writ against the mortgagor and possession thereof taken from the mortgagee by the officer, and the mortgagee cannot interfere with it, until he has given the officer forty-eight hours written notice of the true amount due on the mortgage, nor then, nor ever after, if the amount due is tendered him within that time. R. S., c. 81, § 42. To be sure the mortgagee may assign his mortgage and sell the property to a third person, subject to the mortgagor's right of redemption; Homes v. Crane, 2 Pick. 610; and by so doing he simply sells his interest in, and not the property; but the only mode by which a mortgagee can acquire absolute title is by the statute foreclosure. R. S., c. 91, § § 3, 4 and 5.

While the mortgagee has a right of property defeasible on performance of the condition, his interest vests in him wholly by virtue of his mortgage which represents the property. If he had not taken the mortgage in the case at bar, he would have no title or interest whatever in the wagon. He sold and delivered it to the defendant for an agreed price and accepted the negotiable note in payment therefor. The sale was thereby consummated and the defendant thereby acquired the absolute title. The defendant then having the full title,...