Burdick v. McVanner

2 Denio 170

• Court: New York Supreme Court
• Decided: January 15, 1846
• Status: Published

Opinion

By the Court, Beardsley, J.

By the mortgage to Parker, and the failure to pay according to its terms, the plaintiff lost all legal right to the cow, an absolute title to her, at Law, being vested in the mortgagee. (Fuller v. Acker, 1 Hill, 475; Smith v. Acker, 23 Wend. 667; Patchin v. Pierce, 12 id. 62; Case v. Boughton. 11 id. 109; Langdon v. Buel, 9 id. 83.) The assignment transferee! Parker’s title, which was then complete, to the defendant, who thereby became absolute owner, and as such might at any time take the cow from the possession of the plaintiff, whose only rights were those of a naked bailee.

The action was trover, which cannot be maintained without proving property, general or special, in the plaintiff. (1 Chit. Pl. 170, 7th Am. ed.) But as between these parties this plaintiff had neither. At law he had no title whatever against the defendant, and could only redeem in equity, a right which in this ease, owing to the small value of the property, could not be enforced in the court of chancery. But this circumstance cannot change the construction of the mortgage, nor give to the plaintiff a right or a remedy which he would not have if the property was of greater value.

This mortgage expressly authorized the mortgagee to sell the mortgaged property and thus satisfy the debt due to him; but it did not require him to do so or forfeit his rights tinder the mort gage. A power to sell like this is often found in chattel mort gages, but it has never been supposed to extend the time of payment specified in the mortgage, nor under any circumstan ces to reinvest the mortgagor with title to the property.

The judgments were erroneous.

Judgments reversed.