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FORD against RANSOM
McCunn, J. On or about the 24th day of December, 1868, Mr. John II. Ford, the plaintiff in this action, was owing the defendant, Mr. Charles B. Ransom, the sum of eight thousand one hundred and nineteen dollars, and twenty-four cents, to secure which he sells to Mr. Ransom the stock of goods and fixtures in certain premises, and executes and delivers a bill of sale for Said goods and fixtures—Mr. Ford retaining possession and trafficking with said goods.
Along with such bill of sale he executed an assignment of an unexpired lease which said Ford held of said premises. At the same time the defendant delivers back to the plaintiff a written stipulation, securing to him (Ford) the possession of the goods and fixtures until the following first of 417 January. This arrangement was made for the purpose of securing the dependant payment of eight thousand one hundred and nineteen dollars and twenty-four cents, clue him from the plaintiff.
And hence, in the stipulation a clause was inserted allowing the plaintiff until the first of January to pay the eight thousand one hundred and nineteen dollars and twenty-four cents, and on payment of that sum revesting in the plaintiff the property in the goods and fixtures. It must The borne in mind that Mr. F. rd still retained possession.
Before the first of January the parties quarrel, and the defendant having attempted to take possession of the goods and fixtures, and the lease, the plaintiff brings this suit to quiet him in his possession until the lapse of the period during which, by the terms of the stipulation, he was to remain in possession. Clearly, the plaintiff is entitled to the relief he solicits.
The bill of sale and the stipulation being executed at the same time, between the same parties, in relation to the same subject-matter, and in contemplation of the same object, constitute but a single contract; and thus it appears that by his own agreement the defendant has renounced the right of possession under his bill of sale, and has secured possession of .the chattels to the plaintiff until the expiration of the stipulated period.
I am at a loss to conceive by what right the defendant can claim possession in defiance to his own solemn stipulation : conceding that by the bill of sale the properly in the goods passed to the defendant, yet he was not to have possess ion until the first of January. The transaction is in effect a chattel mortgage. Indeed, in terms it fulfills all the conditions of a mortgage, there being a transfer by way of security and a contingency on which the transfer should become void : viz: payment of the debt.
Meanwhile the vendee (mortgagee) assents that the vendor (mortgagor) shall remain in possession until déiault. Upon what principle, until that default, can the vendee claim of the ? It is familiar 418 learning, that if the mortgagor be disturbed in his possession before condition broken, he may bring trover or trespass against the mortgagee- Thus the rules of law, no less than his own express agreement, operate to prevent the defendant usurping possession before he has the right of possession.
The mere statement of his claim exhibits its absurdity. It can scarcely be thought necessary to cite authorities in support of the principle above propounded ; but perhaps the defendant’s counsel will be more fully convinced of the invalidity of his pretension when he consults Johnson v. Crofoot, 53 Barb., 574; Hall v. Sampsom, 35 N. Y., 277; Smith v. Beattie, 31 N. Y., 542.