Otis v. Wood

By the Court, Savage,. Ch. J. I think the judge was right in deciding that the contract of April, 1826, was not a sale but a lease; that the interest of a lessee of personal proper [500] ty may be sold on execution, and that in such case the purchaser stands in the place of the lessee. (Van Antwerp v. Newman, 2 Cowen’ 543.) In the case of Hurd v. West, (7 Cowen, 656, it was held, that where sheep were let for a spe^ cified time, and the same sheep to be returned, the title of the lessor continues with the right to assert it when the time expires. In Marsh v. Lawrence, (4 Cowen, 467,) it was decid-' ed that a mortgagor in possession of a chattel, after forfeiture, or when the mortgagee might take possession at his pleasure, had no interest which was the subject of sale on execution; and in McCracken v. Luce, not reported, decided at August term last, it was held, that .a mortgagor of a canal boat, in possession and having the right of possession for a time certain, had an interest which was the subject of sale on execution,. The principle of these cases is, that a person in possession of a chattel, having a right to such possession for a specific time, has an interest which may be sold ; and when that interest expires the owner is entitled to his goods and may bring an action for them. In this case the lessee had forfeited his interest in the mares in question, according to the terms of his contract, by removing them from the demised premises. The plaintiff, therefore, had the same right to the possession of the animals which he would have had, if Goodenoe had remained on the premises till the expiration of his lease. It is said, however, that the plaintiff had waived his right to re-enter upon the possession of his property by acquiescence. I do not perceive any evidence of acquiescence; there is no proof of the plaintiff’s knowledge of Goodenoe’s removal with the property from the demised premises previous to the levy by the defendant. But if there was such evidence, according to the case of Marsh v. Lawrence, the plaintiff waived no right by leaving the property in the hands of the lessee. So long as he had a right to the possession which he might enforce at pleasure, (2 Wendell, 475,) the lessee had no interest in the mares which was the subject of sale. A new trial should be granted.