Atwater v. Mower

The opinion of the Court was‘delivered by Williams, C. J. This case depends wholly on the construction we may give to the writing, executed by the defendant ,to the plaintiff. The plaintiff was a constable of the town of Burlington, and, as such, had an execution in favor of Mr. Maeck, against the defendant, dated 14 December 1832, and about a day or two before it was out, he paid the amount of the same to Mr. Maeck, the creditor, and at nearly the same time, the defendant executed the writing in'question, which is as follows:— “Burlington February 12, 1833. Turned out and delivered to P. Atwater, one white and red cow, which he may dispose of in fourteen days, to satisfy an execution Jacob Maeck v. me. (Signed) ' Willard Mower.” The cow was left in the possession of the defendant, who afterwards, in the fall of that year, disposed of her. If the transaction was nothing more than a turning out of property, to be levied on, which, without such turning out by the defendant, was not subject to be levied on, the plaintiff, by neglecting to levy, advertise, and pursue the other requisites of the law, has lost any claim which he might have had to the same. If it is to be construed as a pledge, then by permitting the cow to go back into the possession of the defendant, or to remain with him, the title of the plaintiff is extinguished. Of the first supposition it may be remarked, that neither the official character of the plaintiff, nor the fact of his having as an officer, any such ’execution, to collect, is recognized or noticed. It is not required, nor supposed, that he was to levy and satisfy the execution after posting the "cow, as the law directs. If such had been the views of the [80] parties, nothing more would have been necessary than for the defendant to consent, that the plaintiff should levy the execution, on the cow, and if this consent was putin writing, it would have been nothing more than turning out the property to the plaintiff, as constable, to be levied on. The writing itself does not import that the plaintiff, as constable, was to levy on the property in question,^nor does the evidence show any such intention on the part of the defendant,and when it is considered that the plaintiff, about the same time, and before he washable thereon’paid the execution we cannot say that nothing more was intended by the writing, than to turn out the property on the execution. The want of delivery, or the re-delivery, shows that a pledge was not contemplated. It appears to us, that the only construction, which can reasonably be given to the writing, in connection with the fact of the payment by the plaintiff; is to treat it as a morts gage, with a power to sell. No particular form of words are requisite to constitute a mortgage, and although the par-? ties may make use of terms, which vvould imply something else, yet, if it is apparent that a mortgage was intended, the court will so construe it. The case of Langdon v. Buell, 9 Wend. 80, shows, that the words “I pledge and give a lien,” were not considered as decisive of the character of the wrk ting, but the writing was considered as a mortgage, because such was evidently the intent. In the case before us, there was a consideration, either that the plaintiff then had paid, or would immediately pay, the execution in favor of Mr. Maeck. The cow was turned out and delivered to the plaintiff, not as constable, but to him personally, as a creditor'; having become such hy payment to Mr. Maeck already made, or to become so, by payment thereafter to be made. And after fourteen days, the plaintiff was authorized to dispose of the property, thus turned out, in such manner as he thought proper, either by private or public sale, to satisfy the execution. The defendant was at liberty, at any time within fourteen days, to satisfy the execution, by payment to the plaintiff. After that time, the property hecame absolutely the plaintiff’s, and he was at liberty to dispose of it in such way as he thought proper. [81] Having this view of the case, we consider the charge of the Court below correct, and the judgment of the County Court is, therefore, affirmed. Collamer, J. — Dissenting.