Shuart v. Taylor , 7 How. Pr. 251 ( 1852 )

T. R. Strong, Justice.

The effect of the decision of the court, and the rule entered thereupon, setting aside the former report of the referee, and directing a new trial, was to place the cause in the same situation, in respect to a trial, it was in before it was first tried. The order of reference was not set aside, but remained in full force; and the duties and powers of the referee were precisely the same as if he had not previously reported.. The objection made on the part of the defendant, to his retrying the cause, was therefore properly overruled.

In respect to all questions of fact in the cause, upon which the referee has passed, I must hold his report conclusive. There was some evidence tending to the conclusions to which he arrived, and no such decided preponderance of evidence against them, as to warrant this court in disturbing them (Durkee vs. Mott, 8 Barb. 423, 425, and cases referred to in note).

' The chattel mortgage, under which, and an assignment thereof to him, the plaintiff claimed title, was upon the interest of Cogs-well in the “ fallow or wheat.” What was that interest when the mortgage was given? According to the finding of the referee, the defendant on selling his farm had reserved to Cogswell, by parol, the right to sow the thirty acres, on which the wheat was raised, with wheat on shares, his share to be one half, and the purchaser of the farm to have the other half; he did sow the wheat, and when the crop was ripe, harvested it. Cogswell, as appears by the proof, at the time of the sale of the farm, was living on and had crops upon it; he had partly prepared the ground for the crop, and continued to live there until the spring after the wheat was put in. Upon this finding and proof, it is clear that Cogswell, at the time of giving the mortgage, had a right to the use of the thirty acres for the purpose of raising a crop of wheat, and having one half (Austin vs. Sawyer, 9 Cow. 39; Mott vs. Palmer, 1 Comst. 564). The owner of the farm, having permitted him to prepare the ground and sow the crop, was concluded from denying his right- Having such an interest, I see no good reason why the mortgage did not, upon its execution, become a lien upon it. The referee has found that part of the wheat was then sown; but however that fact maybe, as the mortgage was upon the interest of Cogswell in the “fallow,” I am of opinion it bound his right to the use of the land, and the wheat which was raised in the exercise of that right. This is not the case of a mortgage of property which the mortgagor did not own at the time, but one of a mortgage upon an interest in property which then belonged to the mortgagor (Otis vs. Sill, 8 Barb. 111, 112, and cases cited; Barnard vs. Eaton, 2 Cushing, 303; Codman vs. Freeman, 3 id. 306).

Regarding the mortgage as operative upon one half of the wheat, can the plaintiff maintain trover, for a sale of the crop after he became assignee of the mortgage, made without his assent, before the mortgage money became due, and when he. had not taken possession? The conclusion to which I have arrived upon this question is, that the legal operation of the mortgage was to vest in the mortgagee the entire legal title to the property mortgaged, subject only to be defeated by a performance of the condition of the mortgage; that there being nó provision in the instrument for the retaining of the possession of the property by the mortgagor for any time, the mortgagee had a right, by the instrument, to the immediate possession thereof, which right was acquired by the plaintiff by the assignment to him; and this right of present possession was sufficient to entitle him to sue in trover, for a conversion; and that such sale was a conversion (Mattison vs. Baucus, 1 Comstock, 295; Butler vs. Miller, id. 497; Lyon vs. Coburn, 1 Cushing, 278; Coles vs. Clark, 3 id. 399). In the case last cited, Chief Justice Shaw, in delivering the opinion of the court says: “We must take it as settled that a mortgage of a chattel, vests a property in the mortgagee; not an absolute title indeed, but a present title, defeasible upon a condition subsequent.” And again: “ Another consequence of this relation is, that as a general rule, the right of possession follows the right of property; and therefore, when there is no restraining stipulation, the mortgagee having the right of property, until defeated by the performance of the condition, has as an incident thereto the right of possession, and may therefore take the goods into his own custody, or maintain trespass or trover for them, against any one who takes or converts them to his own use.” That case is also in point on the question of conversion. •

The position taken by the counsel for the defendant, that the defendant was a tenant in common of the crop with the purchaser of the farm, and had a right to do what he did, is disproved by the report. The plaintiff, who under his mortgage had the legal title to Cogswell’s share, was a tenant in common with the owner of the land, if such a tenancy existed in respect to the crop; and, in that view, the sale of the wheat by the latter, without the assent of the plaintiff, and with the assent of the defendant, who claimed title to the one half covered by the mortgage, and the receipt by the defendant of the avails of that half, was, as to the plaintiff, a conversion by the defendant.

Entertaining these views, I must deny the motion to set aside the report.