Tufts v. Haynie

Cherrington, J. The motion to dismiss the appeal is based on the claim dhat the action is one at law, that the instrument attached to [497] the petition is not a chattel mortgage, but is rather in the-nature of a contract evidencing a conditional sale, conceding: that if the instrument is a mortgage, the action is equitable in character, and therefore appealable. Vance & Hire, for plaintiff. Newby & Morrow, for defendant. While not in the form of a chattel mortgage adopted in general use, we still think it such in legal effect. This is sufficient to dispose of the motion adversely to claim of defendant. If, however, the instrument would admit of the construction given it by defendant’s counsel, the action would still be appealable, it being one in which equitable relief is clearly prayed for, and properly so, too, as the averments of the petition justify such prayer. The answer contains nothing that can avail as a defense to the action. The idea of the pleader is, that the pursuit of the remedy here sought is equivalent to taking possession of the property covered by the contract in violation of the provisions of section 2, O. L. vol. 82, page 238, and that, consequently,, the suit cannot be maintained. I have already said, that if the instrument is not a contract of conditional sale, it cannot, therefore, in any way be affected . by the section referred to. If it would admit of the construction claimed for it, still I don’t see that the right to maintain the action can be affected by the statute. The plaintiff, by this action, is not seeking to take peaceable-possession of the property, nor is he seeking to recover possession of it by an action at law for that purpose (neither of of which he would be permitted to do without compliance-with the section of the statute referred to as to repayment, etc.). He is, in effect, simply asking the court to take an account of his interest in the property described in the instrument, and, through its proper officer, convert the same into money with which to satisfy that interest. Motion to dismiss the appeal overruled, demurrer to answer sustained, and decree for plaintiff’.