Olds v. Andrews

Biddle, J. Complaint by the appellee, against the appellant, to recover the possession of personal property. The appellant answered by a general denial and a special paragraph. Demurrer to special paragraph, for want of [148] facts, sustained. Trial by the court and finding for appellee. By a motion for a new trial and his assignmoms of error, the appellant presents two questions for our consideration : 1. The sufficiency of the second paragraph of answer; 2. The sufficiency of the evidence to sustain the verdict. 1. The sufficiency of the second paragraph of answer. The facts in brief, as stated in this paragraph, are as follows : That the defendant was a constable; that he had then several executions in his hands for service, in favor of the three several plaintiffs, but all against the goods and chattels of “ The Otter Creek Block Coal Company;” that, as commanded by said rvrits, he levied upon the property described in the complaint, and took possession of the same, as the property of the said “ Otter Creek Block Coa-1 Company,” and that the appellee replevied the same. The defect in this paragraph is that it nowhere avers that the property in controversy belonged to “ Otter Creek Block Coal Company,” and was subject to execution. The demurrer to it was properly sustained. 2. The sufficiency of the evidence to sustain the verdict. The appellee, to sustain his case at the trial, introduced a chattel mortgage executed by “ The Otter Creek Block Coal Company” to himself, to secure to him the payment of three several promissory notes, with the usual condition, that, upon breach by the mortgagor, the mortgagee should have possession of the goods “ for his own use forever,” contemplating that the goods should remain in possession of the mortgagor until breach. Tic also introduced evidence tending to show a breach of the condition of the mortgage by the non-payment of the notes secured thereby, as stipulated therein. The appellant introduced as evidence three several exe [149] cutions issued to him as constable on judgments against “The Otter Creek Block Coal Company,” and the levy made on the property in suit, in pursuance of the command of the writs, as the property of said company. Opinion filed at November Term, 1878. Petition for a rehearing overruled at May Term, 1879. Other evidence as to value, etc., was introduced. The question is thus presented, which party had the right of possession of the property at the time the suit was commenced, the appellant by virtue of his office, the writs of execution in his hands, and the levy made upon the property thereon, or the appellee by his right under the chattel mortgage ? This question has been settled by this court. Mobley v. Letts, 61 Ind. 11; Heimberger v. Boyd, 18 Ind. 420 ; Schrader v. Wolflin, 21 Ind. 238; Sidener v. Bible, 43 Ind. 230; Broadhead v. McKay, 46 Ind. 595 ; Landers v. George, 49 Ind. 309 ; Herman Chat. Mortgages, secs. 191, 192. The equity of redemption in the mortgaged goods still remained in the mortgagor; that was an interest which might be sold by virtue of the executions in the hands of the constable; and whatever substantial interest the mortgagee may have in the goods, he had not the right of possession as against the constable for the purpose of making the sale after the levy, not at the time he commenced this! suit; he can not, therefore, maintain an action for their possession. Sec. 436, 2 R. S. 1876, p. 207. Howe, J., dissents. The judgment is reversed, at the costs of the appellee, and cause remanded with instructions to sustain the motion fora new trial, and for further proceedings.