Gammage v. Silliman

Opinion by White, P. J. § 14. Mortgagee; cannot maintain action of trover, etc., against purchaser of mortgaged property, when. Goods or chattels mortgaged as security for a debt may be levied on and sold under execution, subject to such mortgage. [R. S. art. 2296.] A mortgage is simply a lien incident to the debt intended to be secured ; the legal title remains in the mortgagor until the lien is foreclosed. If the mortgaged property be sold under execution against the mortgagor, when the same is in the possession of the mortgagee, the purchaser would not be entitled to the possession of the property without discharging the mortgage. [R. S. art. '2296.] But if the mortgagee be not in possession, the purchaáer is entitled to possession without discharging the mortgage, and such purchaser cannot be held liable in damages to the mortgagee for taking possession of the property, and disposing of his legal title thereto by sale. In such case the mortgagee cannot maintain against the purchaser an action of trover and conversion; nor can he claim the property under the statute for the trial of the right of property. The proper remedy for such mortgagee to pursue is to foreclose his mortgage. Reversed and remanded.