Webb v. McCain

Thomas, J. The appellant contends that the verdict of the jury in this case is not sustained by sufficient evidence, and that it is contrary to the law; and these questions are properly presented for review here. The testimony of the appellee, Harry McCain, was: That he had mortgaged the team of mules and the harness described in his complaint to the appellant to secure the payment of an indebtedness of...$358 00 He claimed and testified that he had paid this as follows: By balance due him from appellant for work.$ 18 00 By 120 tons of hay delivered by him to appellant, at an agreed price of $4 per ton. 480 00 By a hay press delivered by him to appellant, for which he was to be credited. 130 00 That he had received in cash from appellant on the hay delivered the sum of. 252 00 That the appellant had paid some debts due by him to other parties amounting to. 56 00 $628 00 $686 00 —Which, under the testimony of the plaintiff himself, would have left a balance due upon the indebtedness secured by the mortgage upon the mules and harness of $38, exclusive of interest. Under our law (section 4754, Mansf. Dig.), ‘‘in the absence of stipulations to the contrary, the mortgagee of personal property shall have the legal title thereto, and the right of possession, ’ ’ and it nowhere appears in this case [308] that there was a stipulation to the contrary; and it would be manifestly unjust to sustain a verdict assessing damages against the appellant for the retention of this property, which, under the evidence and the law, he had a legal right to retain until the mortgage upon it had been paid in full. The jury, in its verdict, found that there was due from appellee to appellant the sum of $137, and, as appellant only claimed an indebtedness of $66.10, secured by the alleged oral mortgage on the corn, the jury must have found that there was still due upon the mortgage of the mules and harness the sum of $70.90. In Hudson vs Snipes, 40 Ark. 77, the court, in delivering its opinion, said: “This is not a bill in chancery to ascertain the mortgaged debt and for decree of foreclosure, but an action of replevin by the mortgagee against the mortgagor for possession of the mortgaged property. After foreclosure, the mortgagee may bring replevin for the goods mortgaged, provided any portion of the indebtedness secured by the mortgage is still due and owing to him; and it is no defense to the action to show that a portion of the indebtedness has been paidbefore suit, but proof that the entire debt •has been discharged is a good defense. Jones, Chat. Mortg. § 706; Marks vs McGehee, 35 Ark. 218. * * * Whether, on a bill in chancery by the mortgagee to foreclose or by the mortgagor to redeem, a set-off may be allowed against the mortgage debt, need not be considered in this case (see Nolly vs Rogers, 22 Ark. 230), which is an action of replevin for the property embraced in the mortgage, brought after default and forfeiture, and in which a set-off is not a proper defense. Gantt’s Dig. § 4572; Wat. Set-Off, 144; Fairman vs Fluck, 5 Watts, 516; McMahan vs Tyron, 23 Ga. 43; Nutwell vs Tongue, 22 Md. 419. ” And the converse of this proposition is true, that where the mortgagor of chattels brings a suit in replevin against the mortgagee for possession of the mortgaged goods, alleging that the mortgage [309] indebtedness has been fully paid, nothing short of proof that he has fully discharged the mortgaged indebtedness will sustain a verdict or judgment in his behalf for possession of the goods and damages for their detention. It appearing in this cause, from the testimony of the appellee, as well as from the verdict of the jury, that the appellee had not discharged in full the indebtedness secured by the mortgage upon the mules and harness, the verdict in his favor for their possession and damages for their detention is not sustained by sufficient evidence, and is contrary to the law. For the reasons stated, the judgment of the trial court is reversed, and the cause remanded. Reversed and remanded. Clayton and Townsend, J.T., concur.