Cotton v. Watkins

By the Court, WnrroN, C. J. The bill of exceptions in this case shows that the only exception taken to the ruling of the. judge at the trial, was in relation to the admission in evidence of the assignment of the mortgage to the plaintiff below. It appears that the defendant below, Cotton, requested the judge to instruct the jury that the plaintiff was not entitled to maintain the action upon the testimony, and that the judge “ omitted and neglected” so to charge the jury. But it does not appear that any exception was taken to this omission of the judge. It appears also that the defendant below made a motion for a new trial, and that the motion was denied, but no exception appears to have been taken to the order of the judge denying the motion. We cannot properly, therefore, look at any of the errors assigned, except the one in relation to the admission of the assignment of the mortgage in evidence. We think this was clearly admissible. The plaintiff was in possession of the mortgaged property at the time the defendant took it away; he was selling it at retail and using it as his own. If there was any technical objection to the reception of the assignment in evidence at the time it was offered, because it did not sufficiently identify the mortgage, the objection was subsequently removed by the defendant’s testimony. The bill of exceptions shows that the defendant proved that the solo consideration of the said assignment of the notes and mortgage and other securities by Hopkins to the plaintiff was [635] Ilopkins’debfc to the plaintiff. The defendant then proved the assignment of the mortgage and the consideration. We have thus disposed of the only question fairly presented by this record. But if the plaintiff in error had taken an exception to the omission of the judge to charge the jury as he requested, we do not think that exception would have availed him. He requested the judge to decide the whole case; to leave nothing to the jury to pass upon, however fair and honest the assignment of the mortgage may have been. We suppose that if Hopkins was indebted to the plaintiff, and honestly and fairly assigned the mortgage to him to secure or pay the debt, the plaintiff became invested with all the rights of a mortgagee of the property. He had ihe same right to take possession of the property and foreclose the mortgage. He had the right, therefore to maintain trespass against any one who wrongfully took the goods from him. The counsel for the plaintiff in error contends that if this was an assignment oí a portion of Hopkins’ property to secure the plaintiff's debt, then the plaintiff obtained but a specific lien upon it, and the residuary interest of Hopkins was liable to a sale on execution. He cites the case Leitel vs. Hollister, 4 Comst. R., 211, in support of this proposition. We have no doubt of its correctness. We have tliesame doctrine established by statute iu this State, in regard to the chattels pledged for the payment of money. Rev. Stat., chap. 102, § 49. But nothing but the’ interest of the mortgagor or pledgor can thus be sold. The mortgagee or pledgee has a right to the possession of the goods for the purpose of obtaining the payment of his debt, and whosoever wrongfully takes the goods hour his possession before this is accomplished, is a trespasser. Assuming then, that the plaintiff obtained only a lien on the goods by the assignment-, for the purpose of paying his debt against Hopkins, he had a right to the possession of the goods for the purpose of enforcing the payment of the debt, and the defendant was guilty of a trespass by taking and carrying them away. The judgment is affirmed.