Thompson v. Moore , 36 Me. 47 ( 1853 )

Wells, J. —

The defendant was not a creditor of John M. Thompson, and had no right to question the sale made by him to the plaintiff. Such sale was valid between the parties, although a fraud might have been intended against the creditors of the vendor. Nichols v. Patten, 18 Maine, 231. But a compromise was made with those creditors, and a mortgage given to secure their debt. The mortgage was subsequently purchased by the defendant, and he became authorized to hold the goods mortgaged, unless they were redeemed by the plaintiff, the mortgager.

If the mortgaged property is not redeemed within sixty days after the breach of the condition, the title of the mortgagee becomes absolute. But he may extend the time of performance, and waive the forfeiture. Green v. Dingley, 24 Maine, 131. Flanders v. Barstow, 18 Maine, 357; Greenleaf’s Ev. § 304. It appears that the defendant sold a part of the goods mortgaged within sixty days after the mortgage became payable, and before his title had become absolute. This conduct would imply an understanding; that a disposition should be made of the property different from that prescribed by law. There does not appear to be any error in the instructions. Exceptions overruled.

Howard, Rice and Hathaway, J. J., concurred.