McLoud v. Wakefield

Thompson, J. If the Bussey & McLeod Stove Co., for whom the defendant acted in taking possession of the goods replevied, had a right to take possession of the same, this action cannot be maintained. If the chattel mortgage of the goods from Lawson Brothers to W. P. Welch was invalid as to attaching creditors without notice, as claimed by the plaintiff, it was valid as between the parties thereto. A sale and delivery of the notes thereby secured to the Bussey & McLeod Stove Co., and a delivery therewith to them of the chattel mortgage, without an assignment thereof to them, authorized them as the agent of Welch to do whatever he had a right to do in the way of enforcing the mortgage against the Lawson Brothers. [560] If there is no stipulation in a chattel mortgage to the contrary, the mortgagee has at any time the right to take possession of the mortgaged property. Until this right is exercised the possession of the mortgagor is merely permissive. Longey v. Leach, 57 Vt. 377; Enright v. Dodge, 64 Vt. 502; Jones Chat. Mort. (1st ed.) § 426. There was no provision in this mortgage that the mortgagor should have possession of the property until condition broken, and therefore Bussey & McLeod Stove Co. had a right to take possession of the goods when they did, although no part of the principal or interest of the mortgage debt was then due. Their possession at the time the Lawson Brothers filed their petition in insolvency and when they were adjudged to be insolvent debtors, cured any defects there may have been, if there were any, which we do not decide, in the execution or record of the mortgage. Having taken possession of the goods covered by the mortgage, but purchased subsequent to its execution and delivery, such goods come under its cover and operation as of its date. Peabody v. Landon, 61 Vt. 318. There was no fraud in the execution of this mortgage as to the creditors of the Lawson Brothers, and it was executed more than four months before the adjudication of insolvency, so that it is in no way affected by that proceeding. Judgment affirmed.