Brown v. Bement & Strong

8 Johns. 96

• Court: New York Supreme Court
• Decided: May 15, 1811
• Status: Published

Opinion

Per Curiam.

The plaintiff has not shown a right of action. Here was a complete transfer of the title to the goods in question, with a condition of defeasance, on the payment of 210 dollars and 35 cents, in 14 days» This was a mortgage, not a technical pledge; and all that was said in the case of Cortelyou v. Lansing, (2 Caines’s Cases in Error, 200.) respecting the nature and redeemableness of pledges, has no application to the case. The distinction between a pledge and a mortgage of goods xvas recognised by this court in Barrow v. Paxton. (5 Johns. Rep. 258.) A mortgage of goods is a pledge and more ; for it is an absolute pledge to become an absolute interest, if not redeemed at the specified time. After the condition forfeited, the mortgagee has an absolute interest in the thing mortgaged ; whereas a pawnee has but a special property in the goods to detain them for his security. (2 Ves. jun. 378. 1 Powell on Mort. 3.) The title of the defendants here became absolute after the 14 days; and though it does not appear whether one of the horses was sold before or after the expiration of the time to redeem, that omission is not material, as no attempt was made, in season, to redeem.

Judgment of nonsuit must, therefore,.be entered according to the stipulation in the case.