Malcom v. . O'Reilly

Rapallo, J. The plaintiff’s mortgage upon the chattels in controversy was payable on demand. The complaint alleges that before the conversion of the chattels by the defendants the plaintiff demanded of the mortgagor payment of the mortgage debt, and thereupon became entitled to the immediate possession of the property, and became the owner thereof and took the same into his possession, and while he was so lawfully in possession thereof, the defendant wrongfully took it and converted it to his own use without regard to a notice given to him that plaintiff was the owner. These allegations show that the mortgage debt had become due, but the defendants contend, in support of their demurrer, that the complaint is defective in not averring that default had been made in the payment thereof. Though the default is not *161 alleged in terms, we think enough was stated to entitle the plaintiff to maintain the action. He alleges that, at the time of the conversion by the defendant, he, the plaintiff, was owner of the property and lawfully in possession thereof. These allegations would have been sufficient without setting forth in detail how he acquired the title and possession, and though in attempting to do so he omitted to state, in terms, the default in complying with his demand of payment, yet such default is consistent with and clearly to be implied from the facts stated, and the omission to mention it does not vitiate the general averment of title and possession. The substance of the complaint is that he became owner under a mortgage which was past due, and under which he had taken possession and was lawfully in possession. The judgment should be affirmed. All concur, except Miller and Tract, JJ., absent. Judgment affirmed.