Campbell v. Leonard

Lowe, C. J. The errors assigned raise three or four distinct questions. 1. Whether the retention of the property mortgaged after forfeiture by the mortgagors, under the circumstances detailed in the evidence and the stipulations of the parties in in the mortgage contract, constitute a legal fraud which the court may determine, or whether they are badges of a fraud [493] ulent intent and want of good faith, open to explanation, which should he submitted to the jury. 2. Whether the mortgagors had any interest in the mortgaged property which was seizable on execution. 3. The improper introduction and exclusion of certain evidence on trial. 4. The refusal of the court to grant a new trial for the reasons assigned. These questions will he considered in their inverse order. Aside from the questions of law involved in the three first propositions, which will be noticed in their place, we discover no sufficient reason for disturbing the verdict of the jury. It can not be claimed, under the evidence, as certified to us, that it is so clearly against the weight of the same as to authorize a reversal of this case on that account. Admitting the defense as to the five buggies, fairly made out, and that the sale of the four matched horses, under the Hirschel execution, was legally justified, still there was enough of other property taken and sold by the defendant, which would reasonably justify the verdict of the jury. Under such circumstances we can conceive of no legal necessity making it incumbent upon the jury to return a special verdict, justifying the defendant in selling the'match horses and buggies. Practically, such a verdict could be of no benefit to him, if in fact he was guilty in wrongfully seizing and selling other property at the same time to the full value of the verdict found by the jury; and this we think the evidence shows they had reasonable grounds for believing. Upon a closer examination of the testimony of Messrs. Corbin and Mitchell, we have concluded to pass the questions raised in regard to the admission of the one an'd the exclusion of the other, as not being well taken in the first place; and secondly, as possessing no practical importance in the final result of the case, even if the ruling of the court in the premises was technically incorrect. The question whether a mortgagor has any interest in [494] chattel property-mortgaged by him, which is the subject of' a levy and sale by execution has not, that we arc aware of¿been settled by any direct decision in this State. It would depend, of course, upon the provisions of the execution law, 1 defining what may be seized and sold upon execution. In Kentucky and Indiana they have laws in reference to goods'' mortgaged being scizable on execution, to the effect, “that where personal property is covered by mortgage, all the; right, title and interest, legal and equitable, which the mortgagor has in said property, is subject to be levied upon and sold by execution in the same manner as such property: might have been sold if no incumbrance had existed; and • the purchaser takes it subject to such incumbrance, and may _ pay and discharge such incumbrance and thereby perfect his' title thereto in the same manner as the mortgagor having an ‘ equity of redemption thereto, might do.” Upon the Ken- • tucky authorities, founded upon the above statutory pro-.: visions, the appellant mainly relies to sustain his position-that the mortgagor has an interest which may be sold on - execution. But we have no such statute in this State, nor. any other provision of law which would authorize such a. proceeding. Section 1893, Code of 1851, makes bank bills. and other things in action the subject of levy and sale, and it is claimed that this necessarily includes the equity of redemption under a chattel mortgage; but not so according-to our thinking. The equity of redemption has relation, alone to the title of property, redeeming or getting back that title after forfeiture. A chose in action relates to an) interest which a party has usually in executory contracts, and which he is to realize in money by action at law, as upon i notes, bonds and other contracts. The distinction between • the two interests is obvious. It is true that in New York-, (3 Wend. 500,) it was held that a mortgagor of goods in-possession, and having the right of possession for a time certain may have a beneficial interest which could be the, subject of a sale on execution. . But such was not this case. [495] In the same State, however, it was also held, that after forfeiture the goods could not be seized as the property of the mortgagor, though in his possession. 4 Cow. 461. The authorities are abundant, in the absence of a statute that would authorize it, that goods mortgaged for a debt can not be taken on execution against the mortgagor, until the money is paid or tendered to the mortgagee. 1 Pick. 309, 399; 4 Mason 464; 3 Watts 258; 2 A. K. Marsh. 331; 2 N. H. 13; 8 Miss. 342; 1 Ves. jun. 430. The general rule is that the right to seize and sell is co-extensive only with the power to take and deliver possession. Such power could not exist under our law, which gives to the mortgagee of personal property, both before and after forfeiture, the title and right of possession subject to be divested only on performance of the condition. The most important, as well as the most difficult question in this case, is the one first above suggested, involving a construction of the statute regulating and defining the rights of parties to chattel mortgages. Wo have so fully considered this question at the present term in the case of Torbert v. Hayden, ante, that we deem it unnecessary again to go over the same ground. It is only necessary for us to say that before writing the opinion in that case, the very able arguments filed by counsel in this cause 'were carefully examined; and it is believed that the several phases of the question as presented and argued in this case have been considered and passed upon in the one to which reference is now made for an exposition of our views in the matter. These views aré adverse to the doctrine contended for by the learned counsel for the appellant. We are satisfied that on the trial of this case below, the court in the main ruled the law of the case correctly. Affirmed.