Murray v. Erskine

109 Mass. 597

• Court: Massachusetts Supreme Judicial Court
• Decided: March 15, 1872
• Status: Published

Opinion

Ames, J.

The mortgage, under which these defendants justify their acts, provides that in case the amount of the loan and interest, “ or any part thereof,” according to the terms of the contract, shall remain due and unpaid, after the expiration of the time therein named for the payment thereof, (that is, for the payment of any part of the loan,) the mortgagees may take possession of said schooner and sell her at public auction, in order to satisfy what may then remain due. We see no ground on which it can be held that they cannot exercise this right until after the whole debt has matured or become payable; or that they cannot apply the proceeds of the sale, so made, towards the whole of their debt, including that part which has not, as well as that which has, become actually payable at the time of the sale. By the terms of the mortgage, the defendants had a right to take possession of the vessel, and cannot be charged as for a wrongful conversion of it to their own use by reason of their so doing; nor would any irregularity in their subsequent proceedings in the sale, or in the application of the proceeds, make them liable for a conversion of the property, while the mortgage remained unredeemed. Landon v. Emmons, 97 Mass. 37. It is immaterial whether their conduct was influenced by an apprehension that the plaintiff was about to send the vessel to a foreign country, or even whether they gave that reason for seizing her. If the condition of the mortgage was violated, and if by their conduct or declarations they made it manifest to the plaintiff that they took possession as mortgagees, and on that ground, it was sufficient, and such in substance was the ruling at the trial.

Exceptions overruled.