Van Hassell v. Borden

1 Hilt. 128

• Court: New York Court of Common Pleas
• Decided: May 15, 1856
• Status: Published

Opinion

INGRAHAM, First Judge.

The return shows, by the testimony of Martens, that he and ITanschedt both executed the mortgage. The copy was properly received in evidence, being certified by the Register. The justice says, he only received it as evidence of the matters allowed by law, although he might have received it as evidence in the cause generally.

The mortgage was not due when the demand was made of the property. There had been no default according to its terms, and the mortgagors were entitled to the possession of the ^Erods, and not the mortgagee. The plaintiff then (to wit, in May) had no right of possession by which he could claim the goods, whether in possession of the mortgagors or of the defendant.

The bill of sale, executed in June subsequently, possibly gave to the plaintiff the title to the goods, and, if so, would be sufficient to sustain the judgment, if there had been any evidence of a demand from the defendant after the bill of sale had been executed. I can find no such evidence in the case. Where a third person has obtained possession of personal property, the owner may afterwards transfer his right to another, who, on demanding the same, may recover the value, if such demand is not complied with. But he must make such a demand to give him a right of action. Hall v. Robinson, 2 Com. R. 293 ; Cap v. New Haven R. R. Co., 1 E. D. Smith’s R. 522.

. It is apparent, from the evidence in this case, that if the property had been demanded by the plaintiff, after the mortgage had become due, the judgment might have been sustained; but without such demand, where it appears no actual conversion had taken place, I am at a loss to see any grounds on which the reversal can be prevented.

Judgment reversed.