Hathorn v. Lewis

Breese, J. Alexander had purchased the goods taken on the writ of replevin, of Seth Lewis, plaintiff in the action, and executed to Lewis a chattel mortgage in due form, to secure the payment of the notes which he had given to Lewis for the goods. The mortgage stipulates, that they should remain in Alexander’s possession, in the same store in which they were when Lewis sold them to him, and it then provides that “ in case the said party of the first part (Alexander), shall sell, assign or dispose of, or attempt to sell, assign or dispose of any of said goods and chattels, or remove or attempt to remove from said county, any of said goods and chattels, or if the same shall be levied upon or seized by virtue of any execution, writ or attachment, or other process against the said party of the first part, it shall and maybe lawful for the said party of the second part (Lewis), to take possession of the said goods and chattels, and sell the same in the payment of the said sum of money above mentioned in the manner aforesaid,” that is, at public vendue or otherwise, after six days’ notice to Alexander. The plaintiff in error, bought the goods of Alexander, with full notice of this mortgage, and below their value. The mortgage was executed in good faith, and seems liable to none of the objections made to it, by the counsel for the plaintiff in error. But if it were so liable, if the mortgage was not properly acknowledged and a proper entry made on the justice’s docket,—if it does not provide that the possession of the property shall remain with the mortgagor, and if such possession did remain with him contrary to the provisions of the mortgage, still, the mortgage is good as between the parties to it, and as to all persons, except creditors and bona fide purchasers. The facts show, that when they purchased the goods of Alexander, he expressly told them they were subject to this mortgage, and they took the title subordinate to the mortgage. They acquired then, the right of redemption only, as that was all the claim Alexander then' had, the mortgage being valid as between him and Lewis, and Hathorn and Lewis by the purchase stood in Alexander’s shoes, and were not bona fiide purchasers, in the sense we understand that relation. They purchased simply, the right of Alexander, which was the right of redemption, and nothing more. But we see nothing defective in the mortgage, either in form or substance, and Lewis had the right to assert his claim under it. The facts show that only the old goods which Lewis had sold to Alexander, were replevied. We do not see any error in admitting evidence, or in giving or refusing the instructions complained of, and the evidence fully sustains the finding of the jury. The judgment must be affirmed. Judgment affirmed.