Baltes v. Ripp , 1 Abb. Ct. App. 78 ( 1866 )

Leonard, J.

There is no ground for pretense, nor was it claimed at the trial that there was any fraud or mistake in the mortgage under which the plaintiff claimed title. The admissibility of the evidence cannot be urged for that purpose. The mortgage upon its face, as well as the due-bills, which were given for loans made some time before the execution of the mortgage, was due upon demand. The mortgagee was the absolute owner, at law, of the property mortgaged, from the moment of the demand, and the refusal or neglect of payment. The interest of Rittenbach was the right merely to pay off the mortgage debt, and his possession was that of a bailee merely. Fuller v. Acker, 1 Hill, 473. Rittenbach had no interest subject to sale on execution. The defendants cannot therefore make title to the property by the levy and sale.

The tendency of the evidence offered, as to the time of payment, was to vary or impair the legal effect of the mortgage and due-bills. It was properly excluded on that ground. The evidence was not offered to show fraud or any want of good good faith, as to the debt or mortgage. Had that defense been set up the question would have been different.

The evidence offered to prove that Ochsler bid at the sale for Ripp and not for himself, and that he had no possession of the property, was also properly excluded. Ochsler held himself out as a purchaser at the sale, and it is too late afterward to claim that he was acting as an agent merely. By bidding he assumed the character of a purchaser, and the plaintiff had the right to rely upon such act when he commenced his action; and Ochsler must be held as estopped from denying the legitimate conclusion which the plaintiff drew from his conduct.

There appears to have been no error at the trial, and the judgment should be affirmed with costs and damages.

All the judges concurred.

Judgment affirmed, with costs, and ten per cent, damages.