Hornblower, C. J.
This is an action on the case, for taking, carrying away and selling, certain goods and chattels. The declaration contains two counts ; the first count sets forth that George W. Hall and Charles C. Hall, being the owners of the goods, &c., and being indebted to the plaintiff, on the 22d March, 1881, executed to the plaintiff an indenture of mortgage of the goods (which are specified in the declaration) to secure to him a debt of nine hundred dollars; that the mortgage contained a condition, that if the mortgagors paid the plaintiff the said debt on or before the 22d day of March, 1832, with interest, the mortgage was to be void, but in case default should be made in such payment, then the mortgagor covenanted with the plaintiff that he and his assigns might enter into the dwelling house or other place in which the said goods might be, and take and sell the same, and out of the proceeds retain the said debt and interest and all charges, rendering the overplus, if any, to the mortgagor, and that by the terms of the said mortgage, until default should be made, the mortgagors should retain the possession of the said goods. That by virtue of the said mortgage, the plaintiff became entitled to a reversionary interest and property in the said goods. That the defendant, as sheriff of the county of Middlesex, knowing the premises, but contriving, &c. to injure the plaintiff in his said reversionary interest and property, and while the said debt remained unpaid, to wit, on the 7th day of April, 1831, took the said goods oiit of the possession of the said mortgagors, and converted and absolutely sold and disposed of them to his own use, as sheriff of the county of Middlesex aforesaid.
The second count alleges that the plaintiff had a certain other [16]*16mortgage, given and executed to him by the said G. W. H. and O. C. H. of certain goods, &c. therein specified, for a good and valuable consideration, which goods, &c. were by the said mortgage for a good and valuable consideration let by the plaintiff to the said G. W. H. and C. C. H. for a certain term then to come and unexpired; that the defendant, sheriff as aforesaid, knowing the premises, but contriving, &c. to injure the plaintiff in his reversionary interest and property, &e. and while the plaintiff was such owner and proprietor of said goods, and whilst the same were so let and in possession of the G. W. H. & C. C. H. to wit, on the 7th April, 1831, at &c. by his deputy, James A. Priestly, authorized and empowered under the hand and seal of the said Andrew Snowhill, sheriff as aforesaid, took the said goods, &c. out of the possession of the said G. W. H. and C. C. H. and converted and absolutely sold and disposed of the same to the defendants use as sheriff as aforesaid.
On a general demurrer to this declaration, and a joinder thereto, the court below rendered judgment for the defendant.
Upon the argument of this cause, the counsel for the plaintiff in error discussed very ably and elaborately the question of the validity of a mortgage, or a bill of sale, in the nature of a mortgage of personal property, where the possession remained with the donor. But the court are not called upon in this case to add another to the already almost numberless, and in many instances irreconcileable decisions that have been made by the courts in England and in this country, on the subjects of bills of sale. A mortgage or gift, or bill of sale of chattels, whether accompanied with possession or not, is valid and effectual as between the parties, and against all persons, except creditors. Mount and al. v. Hendricks, 2 South. Rep. 738; Hawes v. Loader, Yelv. Rep. 196.
Only two questions present themselves upon the pleadings in this cauge. 1st. Is the defendant a creditor or was he acting by virtue of an execution in behalf of one ? And secondly, Has the plaintiff any such title or interest in the property as to give him a right of action ? The answer to the first question, must be in the negative. It is not pretended, that the defendant was a creditor, and the only ground upon which it is attempted to shew that he was acting in virtue of an execution, is, that in the decía[17]*17ration the plaintiff has called him sheriff of the county of Middlesex, and alleged, that he took the goods as sheriff, and sold and converted them to his own use as sheriff. But the plaintiff has 110 where said upon the record, that the sheriff had any process in his hands under or by virtue of which he seized the goods; and consequently the allegation in the declaration amounts to nothing more or less, than that the defendant being in fact sheriff, committed the injury by color of office, which is admitted by the demurrer.
Has then the plaintiff any such title or interest as to give him an action, even against a stranger ? It must be admitted that at the time of taking the goods and when this action was commenced, the plaintiff had neither possession or the right of possession, but that he had at least, as between him and the mortgagors, a reversionary interest, contingent, on their paying or not paying the debt intended to be secured. The plaintiff’s title to that interest, was an absolute and vested one, but the interest itself was contingent, or rather it was uncertain and contingent, whether he would ever have occasion to assert his right to that interest.
That the owner of a reversionary interest in a chattel, may have an action on the case for an injury done to it, there is no doubt. 1 Chitty on plead. 49, ibid 138, ibid 365 ; 2 Chit. plead. 330, note r.
But, in answer to the cases cited by the plaintiff’s counsel it was insisted that no one but the general and absolute owner, whose title is complete, and who is at all events to have a return of the property; as the owner of a horse, lent or let for hire, can have such an action. I do not, however, perceive any just ground for such a distinction; nor why a mortgagee, who in the event of non-payment, has a right to the possession of the chattel, may not have an action against a stranger for a tortious injury done to it, whereby his security is lessened or his debt endangered. Courts of equity will interfere and protect the pledge from waste or spoliation, upon the ground, that the security will be impaired ; and it is no answer there to say, the right is only contingent—the debt may be, and it is to be presumed, will be paid, and so the mortgagee not be injured. But whether a person having no present interest, but [18]*18only a mere contingent reversion or benefit, can have an action at law or not, I apprehend is not the true question in this case. The argument of the defendant’s counsel is based on a mistake. His premises are not true; he assumes that the plaintiff’s right to have these goods is altogether contingent; whereas I apprehend the contingency is all on the other side. The mortgage is a grant in presentí, subject to be defeated on payment of the money intended to be secured. The legal title to these chattels, ^-passed by the mortgage and vested in the plaintiff—the agreeinent between the parties in reference to the temporary or intermediate possession of the goods, did not alter the substantial rights of the mortgagee.
A mortgagee is the owner of the property at law. 1 Pow. on mort. 42, a Ch. 2; Boston Ed. by Band. And in the same Vol. fol. 31, in note o.
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Hornblower, C. J.
This is an action on the case, for taking, carrying away and selling, certain goods and chattels. The declaration contains two counts ; the first count sets forth that George W. Hall and Charles C. Hall, being the owners of the goods, &c., and being indebted to the plaintiff, on the 22d March, 1881, executed to the plaintiff an indenture of mortgage of the goods (which are specified in the declaration) to secure to him a debt of nine hundred dollars; that the mortgage contained a condition, that if the mortgagors paid the plaintiff the said debt on or before the 22d day of March, 1832, with interest, the mortgage was to be void, but in case default should be made in such payment, then the mortgagor covenanted with the plaintiff that he and his assigns might enter into the dwelling house or other place in which the said goods might be, and take and sell the same, and out of the proceeds retain the said debt and interest and all charges, rendering the overplus, if any, to the mortgagor, and that by the terms of the said mortgage, until default should be made, the mortgagors should retain the possession of the said goods. That by virtue of the said mortgage, the plaintiff became entitled to a reversionary interest and property in the said goods. That the defendant, as sheriff of the county of Middlesex, knowing the premises, but contriving, &c. to injure the plaintiff in his said reversionary interest and property, and while the said debt remained unpaid, to wit, on the 7th day of April, 1831, took the said goods oiit of the possession of the said mortgagors, and converted and absolutely sold and disposed of them to his own use, as sheriff of the county of Middlesex aforesaid.
The second count alleges that the plaintiff had a certain other [16]*16mortgage, given and executed to him by the said G. W. H. and O. C. H. of certain goods, &c. therein specified, for a good and valuable consideration, which goods, &c. were by the said mortgage for a good and valuable consideration let by the plaintiff to the said G. W. H. and C. C. H. for a certain term then to come and unexpired; that the defendant, sheriff as aforesaid, knowing the premises, but contriving, &c. to injure the plaintiff in his reversionary interest and property, &e. and while the plaintiff was such owner and proprietor of said goods, and whilst the same were so let and in possession of the G. W. H. & C. C. H. to wit, on the 7th April, 1831, at &c. by his deputy, James A. Priestly, authorized and empowered under the hand and seal of the said Andrew Snowhill, sheriff as aforesaid, took the said goods, &c. out of the possession of the said G. W. H. and C. C. H. and converted and absolutely sold and disposed of the same to the defendants use as sheriff as aforesaid.
On a general demurrer to this declaration, and a joinder thereto, the court below rendered judgment for the defendant.
Upon the argument of this cause, the counsel for the plaintiff in error discussed very ably and elaborately the question of the validity of a mortgage, or a bill of sale, in the nature of a mortgage of personal property, where the possession remained with the donor. But the court are not called upon in this case to add another to the already almost numberless, and in many instances irreconcileable decisions that have been made by the courts in England and in this country, on the subjects of bills of sale. A mortgage or gift, or bill of sale of chattels, whether accompanied with possession or not, is valid and effectual as between the parties, and against all persons, except creditors. Mount and al. v. Hendricks, 2 South. Rep. 738; Hawes v. Loader, Yelv. Rep. 196.
Only two questions present themselves upon the pleadings in this cauge. 1st. Is the defendant a creditor or was he acting by virtue of an execution in behalf of one ? And secondly, Has the plaintiff any such title or interest in the property as to give him a right of action ? The answer to the first question, must be in the negative. It is not pretended, that the defendant was a creditor, and the only ground upon which it is attempted to shew that he was acting in virtue of an execution, is, that in the decía[17]*17ration the plaintiff has called him sheriff of the county of Middlesex, and alleged, that he took the goods as sheriff, and sold and converted them to his own use as sheriff. But the plaintiff has 110 where said upon the record, that the sheriff had any process in his hands under or by virtue of which he seized the goods; and consequently the allegation in the declaration amounts to nothing more or less, than that the defendant being in fact sheriff, committed the injury by color of office, which is admitted by the demurrer.
Has then the plaintiff any such title or interest as to give him an action, even against a stranger ? It must be admitted that at the time of taking the goods and when this action was commenced, the plaintiff had neither possession or the right of possession, but that he had at least, as between him and the mortgagors, a reversionary interest, contingent, on their paying or not paying the debt intended to be secured. The plaintiff’s title to that interest, was an absolute and vested one, but the interest itself was contingent, or rather it was uncertain and contingent, whether he would ever have occasion to assert his right to that interest.
That the owner of a reversionary interest in a chattel, may have an action on the case for an injury done to it, there is no doubt. 1 Chitty on plead. 49, ibid 138, ibid 365 ; 2 Chit. plead. 330, note r.
But, in answer to the cases cited by the plaintiff’s counsel it was insisted that no one but the general and absolute owner, whose title is complete, and who is at all events to have a return of the property; as the owner of a horse, lent or let for hire, can have such an action. I do not, however, perceive any just ground for such a distinction; nor why a mortgagee, who in the event of non-payment, has a right to the possession of the chattel, may not have an action against a stranger for a tortious injury done to it, whereby his security is lessened or his debt endangered. Courts of equity will interfere and protect the pledge from waste or spoliation, upon the ground, that the security will be impaired ; and it is no answer there to say, the right is only contingent—the debt may be, and it is to be presumed, will be paid, and so the mortgagee not be injured. But whether a person having no present interest, but [18]*18only a mere contingent reversion or benefit, can have an action at law or not, I apprehend is not the true question in this case. The argument of the defendant’s counsel is based on a mistake. His premises are not true; he assumes that the plaintiff’s right to have these goods is altogether contingent; whereas I apprehend the contingency is all on the other side. The mortgage is a grant in presentí, subject to be defeated on payment of the money intended to be secured. The legal title to these chattels, ^-passed by the mortgage and vested in the plaintiff—the agreeinent between the parties in reference to the temporary or intermediate possession of the goods, did not alter the substantial rights of the mortgagee.
A mortgagee is the owner of the property at law. 1 Pow. on mort. 42, a Ch. 2; Boston Ed. by Band. And in the same Vol. fol. 31, in note o. It is said the “ mortgagee, whether in or out of possession, is the legal owner of the ship, and is so considered in a court of law, notwithstanding his title is subject to equitable interests.” Westerdell v. Dale, 7 T. R. 306, 312.
And even under the statute of 21 James 1, the mortgagee of personal property is considered the true owner. Ryall v. Rowles, 1 Ves. 365.
As therefore the legal title to the goods was in the plaintiff, and he had a right to the actual possession and control of them in the event of non-payment of the debt due to him from the mortgagors, and as the defendant, must upon the pleadings as they now stand, be considered a stranger, tortiously taking and converting the goods to his own use, I am of opinion the demurrer ought to- have been overruled by the Court of Common Pleas; and therefore that the judgment must be reversed.
Ford, J.
An action on the case was brought in the Common Please of Middlesex by Peter Hall, wherein he declared against Andrew Snowhill in substance as follows : that G. & C. Hall being the owners of certain goods and chattels, by their indenture of the 22d of March, 1831, sold and conveyed them to the plaintiff, Peter Hall and his assigns forever; in which indenture they inserted a proviso or condition, that if they should pay the vendee a certain debt of $900 in one year, with interest, that then the indenture and sale should be void; and that the vendors should retain possession of the goods till default in payment [19]*19and in case default should be made, that then the vendee might enter and take the goods wherever they might be placed, and sell them for the best price he could obtain for them, and out of the money thus arising, retain for the amount of his said debt, interest and charges, and render the overplus, if any, to the vendors, their executors, administrators and assigns ; whereby the plaintiff, Peter Hall, became entitled to a reversionary interest in the said goods; yet the defendant, Andrew Snowhill, sheriff of Middlesex aforesaid, well knowing the premises, but intending to aggrieve the plaintiff, Peter Hall, in his reversionary interest, on the 7th April, 1831, took those goods out of the possession of the said G. & G. Hall, and sold and disposed of them to his use as sheriff of the county aforesaid. The plaintiff in his second count sets out as before the indenture and proviso, and avers that thereby the plaintiff, Peter Hall, let those goods to G. & C. Hall, for a term then to come and unexpired ; yet the defendant, Andrew Snowhill, sheriff of Middlesex, well knowing &c. and intending, &c. on the aforesaid 7th of April (by his deputy, James A. Priestly, authorized and empowered under the hand and seal of the said Andrew Snowhill, sheriff as aforesaid) took those goods, out of the possession of the said G. & C. Hall and converted and sold them to his use as sheriff aforesaid. The defendant put in to this declaration a general demurrer, on which the court below, after argument, rendered judgment for the defendant, and thereupon the plaintiff below brought a writ of error.
The common pleas undoubtedly meant to decide that general question, which the plaintiff’s counsel discussed here at large, whether a bill of sale containing a condition that the vendor shall retain the possession of the goods until he fails to fulfil a conditioil therein mentioned, is fraudulent and void in law against creditors, or only evidence of fraud to be left to the jury. After this question had agitated Westminster-hall for many years, it was supposed to be settled by the twelve judges in the ease of Edwards v. Harben, 2 Term, Rep. 587; they held that unless possession accompanies and follows the deed, it is void in law against creditors; but if it contain a condition that the vendee is not to have possession till he performs a certain act, his remaining out of possession till that act is performed, is consistent [20]*20with, the deed, and does not avoid it.' To the same effect is Hamilton v. Russell, 1 Cranch 316, and Chumar v. Wood, 1 Halst. 155, in this court, as far as any opinion was expressed. But so many exceptions have since been received to this rule, that the rule itself has been extensively questioned both in England and the United States. See 2 Stark. Evid. 168, and Bissell v. Hopkins, 3 Cow. 166, wherein most of the cases are collected. In Bedlam v. Tucker, 1 Pick. 389, the court say, “ It has always been held in this state (Massachusetts) that the possession of the vendor, after a sale, is only evidence of fraud, and not such a circumstance' as per se, necessarily invalidates the deed." Whenever the question shall come fully before the court in this state, it will be time enough to consider whether any definite rule can be adopted except that in Massachusetts. But it does not arise in this case ; for both by the common law, and also by the statute concerning fraudulent conveyances, a bill of sale is always valid between the parties, and void only as against the vendor’s creditors, whereas this declaration does not shew that Gr. and C. Hall, the vendors, had or have any other creditor than Peter Hall, the plaintiff. What right has Andrew Snow-hill to dispute a bill of sale to which he is no party ? The pleadings neither allege him to be a creditor of the vendors, nor that he seized the goods in virtue of an execution against them. He is said to have done it by his lawful deputy, as sheriff of the county of Middlesex, which is no more than saying that he did it under color of office, in which case he is a tort-feaser, unless he had a writ to justify it; as if under an execution against the goods of A. he seize the goods of B. If he was himself a creditor of Cf. and C. Hall, or if he acted in right of those who were such, he ought to have shewn it in a plea; as the case stands upon demurrer, we cannot look out of the declaration in quest of creditors, but must take it that there are none, and of consequence must consider the bill of sale valid as between the parties to it, and as against third persons not injured by it as creditors.
Another objection is however taken to the action, that though the bill purports to convey the goods to the plaintiff, Peter Hall, forever, yet taking the bill and its parts altogether, that it is only a promise of the goods as security, not amounting in law [21]*21even to a pledge, which can never be without delivery, and therefore that the title is not in the plaintiff even in reversion ; or if the former part of the instrument be a conveyance forever, and the subsequent parts, a lease by him to G. & C. Hall for a year, they shew that he is to have no title at the expiration of the term, nothing beyond a mere power of sale, and it is concluded that without he have a reversionary title, the action is not maintainable. What weight these views might have in the case of creditors, need not be now considered, there being none in this case. If the plaintiff had no reversionary title, he had a reversionary interest in the goods, and for an injury done to it this action lies. The judgment below must consequently be reversed.
Judgment reversed.
Wall now moved for leave to amend the record by withdrawing the demurrer and pleading de novo.
By the Court. We will permit the amendment, upon the defendant's paying to the plaintiff in error, his costs on the demurrer in the Court of Common Pleas, and his costs in error in this court. The costs in this court are allowed, not on the ground, that the plaintiff in error is entitled to recover costs on the reversal of the judgment, but on the ground, that the defendant comes here to ask a favor of the court to permit him now to amend. On granting this the court will require the payment of the costs sustained by the plaintiff in error, in consequence of this erroneous pleading, which includes as well the costs accruing on the writ of error, brought to reverse that judgment, on this very point, as the costs on the demurrer in the court below ; the payment of which is necessary to put the plaintiff statu quo.
Cited in Hale v. Lawrence, 2 Zab. 83; Runyon v. Groshon, 1 Beas. 88.