Blumberg v. Coleman , 1921 Ind. App. LEXIS 268 ( 1921 )

McMahan, J.

Appellee mortgaged a team of horses, wagon and harness to appellants, Blumberg and Teel to secure the payment of a note for $138. The mortgage contained a condition that appellee should retain possession of the mortgaged property until the note became due, and if the note was not paid when due appellants should have the right of possession. The note not being paid when due, appellants secured the possession of the mortgaged property through a writ of replevin, and afterwards advertised and sold it. The mortgage provided for foreclosure by sale at public auction after written notice for ten days by posting in three public places in the vicinity of the sale.

Appellee after such sale, without paying or tendering the amount due on the note secured by the mortgage, commenced this action against appellants for the conversion of the mortgaged property. From judgment in favor of appellee, appellants have appealed and contend that the verdict is contrary to law.

Appellee when he began this action did not have title, possession, or the immediate right of possession to the property alleged to have been converted and was not in position to maintain an action for its conversion. Sapirie v. Collins (1919), 70 Ind. App. 529, 122 N. E. 679. The verdict is contrary to law.

Judgment is therefore reversed, with direction to sustain appellants’ motion for a new trial.