Ferguson v. Thomas , 26 Me. 499 ( 1847 )

The opinion of the Court was drawn up by

Whitman C. J.

No other question seems to be intended to bo raised by the agreed statement of facts than, whether the plaintiff had a right, at the time he sued out his writ of replevin, to possess himself of the heifer; and this depends upon the construction to be put upon the clause in the mortgage, introduced by him, constituting a part of the description of the condition upon which it was made, which is in these words, “and I hereby give the said Ferguson full power and authority to enter my premises, or elsewhere, and take possession of the same property, and make sale thereof for the purpose of paying the note thereafter mentioned, provided the same should not be paid at maturity.” The note, at the time of suing out the writ of replevin, had not become payable ; and the argument is, that, therefore, the plaintiff had not, then, a right to possess himself of the property mortgaged. The terms descriptive of the conveyance, in the preceding part of the mortgage, are as if an absolute sale were intended; and being recorded, as provided by statute, it has been held to be unnecessary to prove an actual delivery of the property mortgaged in order to render it effectual. Unless the above recited clause would restrict the right of the plaintiff to do so. he might possess himself of the heifer at his pleasure. In Ingraham, v. Martin, 15 Maine R. 373, it was so held ; but that, if otherwise agreed by the parties, the case would be different. The question is, had the plaintiff, in the case at bar, other, wise agreed. The deed to the plaintiff speaks the language of the mortgagor. It does not, in express terms, reserve the right of possession till the note shall have become payable. The first part of the deed, by itself, and without the condition, would give an immediate right of possession; and the clause recited does not negative such right in express terms. It seems rather to be an enabling provision, in furtherance of the security intended for the benefit of the plaintiff. If the n'ote, when due, should not be paid, the plaintiff is thereby authorized to take and sell the heifer to pay the debt. Aside from such a provision he would not be justifiable in so doing until sixty days after the breach of the condition. The plaintiff cites and relies upon the' case of Melody v. Chandler, 3 Fairf. 282, as an authority in his favor. And it would seem, if the plaintiff in that case could be allowed to prevail, that the plaintiff in this should also. In that case it appears, that the agreement was express, on the part of the plaintiff, a mortgagee, that the mortgagor “ should retain the possession of the goods, make sale of them in the regular course of his business, render an account of sale, and appropriate the proceeds to the payment of the mortgage debt.” In the case at bar there was certainly, on the part of the plaintiff, no express agreement. At most it is by implication only, if at all. But we think it can hardly be considered as amounting even to that, on the part of the plaintiff; but rather that it should be taken to be an enabling provision, authorizing him to enforce payment sooner than otherwise, under the statute, would have been lawful. As, by the previous terms of the mortgage, the plaintiff would have had a right to take possession at any time, by the terms in the condition he was empowered to take possession, at a particular time for a'particular purpose, viz. to sell the property and pay his debt.

Defendant defaulted.