McEchron v. Martine

111 A.D. 805, 97 N.Y.S. 951, 1906 N.Y. App. Div. LEXIS 257

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 7, 1906
• Status: Published

Opinion

Smith, J.:

,- We agree with the defendants’ contention that a sale under the chattel mortgage was unauthorized until the foreclosure pf the real estate-mortgage. The technical construction which plaintiff’s counsel claims for the stipulation in the chattel mortgage, above quoted, practically takes the life out of the stipulation and nullifies its -effect. A fair interpretation of that stipulation in that mortgage would require the satisfaction of the claim as-f-ar as possible out of the 'real estate mortgage before the chattel' mortgage could be resorted to for aid in-its payment. The fact found by the referee, that the.personal property at Blue Mountain lake was in 18901 conveyed to J. Edwin Martine, and that at the time of the giving of the chattel mortgage and upon April 23, 1901, at the time of the attempted sale thereunder the defendants Godfrey R., Martine and Mary E. Martine, had no interest therein, is supported by the evidence. The inference is quite clear that here was ax transfer of this property for the purpose of evading the creditors of Godfrey R. Martine, but such a transfer is good as between the parties, and the title to the property at all'these times has, therefore, been and now is in J. Edwin Martine, who is not one of the defendants who asserts any counterclaim in this action. This property, however, as well as the real estate at Blue Mountain lake, which’ had been conveyed to a daughter, Mary J. Martine Fletcher, were clearly in the possession of the defendants Godfrey R. Martine and Mary E Martine. They were left in their possession both by the daughter and by the brother who held the legal title to the property.' This right of possession would give to these defendants á right of action for a conversion of that property. The right of the possessor to sue for the conversion of property a third person who does not connect himself with the legal title is well established. He stands, however, as the trustee for the legal owner as to any recovery in such an action.

But this personal property was never converted by the plaintiff. Its possession was in no way changed. Ho doniinion was exercised thereover. This telegram was read at the sale, and the title which was in fact sold was simply the title of Godfrey E. Ma'rtine and Mary E. Martine. In fact the chattel mortgage is peculiar in mortgaging only that part of the chattel property “ which belongs to us in any of said buildings or on said premises.” Under the findings of the referee no property passed by the mortgage. Ho property, therefore, - passed under the mortgage sale, and the. April trip of the plaintiff’s attorney, and his pretended sale at Blue Mountain lake, was a harmless incident which damaged no one, and cam-tot be made the basis of any counterclaim by the defendants in this action. The' estoppel' claimed by the defendants as against the plaintiff by reason of the attempted sale under the mortgage has scant support when the mortgage purports to convey only such part of the property as belongs to the defendants. We see no reason, therefore, for disturbing the conclusions of the referee, and the judgment should be affirmed, with costs.

Judgment unanimously affirmed, with costs; Kellogg, J., not sitting.