Abbott v. Goodwin , 20 Me. 408 ( 1841 )

The opinion of the Court was by

Weston C. J.

The business transacted between the plaintiffs and George E. Abbot, and the bill of sale executed by him to them, must be taken to have been fair and bona fide, the report containing no suggestion or intimation of fraud. By that instrument, the goods described therein, were mortgaged to the plaintiffs, to secure them against certain liabilities, which they had assumed for him. If free from fraud, contracts of this kind have been repeatedly adjudged lawful, and of sufficient validity to secure to the mortgagee or mortgagees the property transferred, until vacated by the performance of the condition. And all persons coming in under the mortgagor, stand by substitution in his place, equally affected by the contract, whether notified of its existence or not. Lunt v. Whitaker, 1 Fairf. 310.

Under the bill of sale, the goods became the property of the plaintiffs, with a right of redemption only in George E. Abbott. Until he did redeem, by performing the condition, as between them, the plaintiffs had all the rights of ownership, modified by a right of possession secured to him, until he made default, with the power of selling the goods, which may be implied, from his covenant to account to them for the proceeds of all sales, to be applied to the payment of the debts intended to be secured, or to be so directly applied by him, at the discretion of the plaintiffs. They authorized sales, and they secured to themselves the power to cotitrol the proceeds for the same purposes, for which the goods were mortgaged. The proceeds were purchased -with their property, through his agency, under their authority. They represented the goods, were substituted for them, and by the contract, were equally subject, to their control. Blood v. Palmer, 2 Fairf. 414. It was manifestly the intention of the parties, that the proceeds should be subject to their lien. If he sold for cash, the money was theirs, so long as it could be identified. And if with the money received he purchased other property, the property so purchased was theirs, until he extinguished their right, by fulfilling the condition. So if he exchanged the goods mortgaged, for other goods, and they chose to ratify it, the goods received in exchange were equally subject to their lien.

This course of proceeding, was not calculated to injure other creditors. The debtor’s right to redeem was all, which could be made available for their benefit, under the statute of 1835, c. 188. And the remedy there provided would apply as well to the substituted goods, as to those originally mortgaged. Nor would the mortgagor obtain credit by the possession of the one, any more than by the possession of the other. Macomber v. Parker, 14 Pick. 497, is a strong case in support of the plaintiffs’ right; and we refer to the elaborate opinion there given, without repeating the illustrations, or citing the authorities, upon which it is founded. That possession of the goods by the mortgagor, with the power to sell them does not impair the rights of the mortgagee, was decided in Melody v. Chandler, 3 Fairf. 282.

The right of the plaintiffs being established, trespass would be the appropriate remedy, if the mortgagor had made default in the performance of the condition, and case, if he had not. Woodruff v. Halsey & al. 8 Pick. 333; Forbes v. Parker, 16 Pick. 462. No objection can be taken then to the remedy; the Statute of 1835, c. 178, § 1, having made trespass and case equally available, where either was proper before.

Defendant defaulted.