Covell v. Dolloff , 31 Me. 104 ( 1850 )

Howard, J.

The plaintiffs, as creditors of the defendant, took a mortgage of personal property, being “ parts of a building,” from Jesse Dolloff, to secure the payment of the debt. The mortgage was to be void upon the payment of the debt by the defendant, or by the mortgager.

The indebtment of the defendant continuing, this suit was commenced on December 5, 1848; on the 19th of the same month, the plaintiffs took possession of the property mortgaged, for condition broken, and on the 21st, two days afterward, “ the building was totally destroyed by a fire which originated in, and was communicated from, another building in the vicinity, and without any fault on the part of the plaintiffs, or of the defendant.”

The question for consideration, by the agreed statement is, whether the plaintiffs are legally responsible for the value of the property thus destroyed, as a payment, or in set-off, pro .tanto.

By the Revised Statutes, chap. 125, § 30, the mortgager of personal property has sixty days in which he can redeem the property, after condition broken. By the mortgage the plaintiffs acquired a conditional title, only, to the property ; and by taking possession, for condition broken, their title was not perfected ; for the debt remained due, and the mortgager could redeem within the time prescribed by the statute. So long as the right of redemption existed, the title to the property could not become absolute in the plaintiffs, nor could they appropriate it in payment of their debt; and, until their title was perfected, the law would not thus appropriate the property. Portland Bank v. Fox, 19 Maine, 99; West v. Chamberlain, 8 Pick. 336; Greene v. Dingley, 24 Maine, 131.

The mortgagee of personal property, in possession after condition broken, and while the right of redemption exists, is responsible for ordinary diligence in the management and preservation of the property, and is liable for ordinary neglect. In this respect his duties and responsibilities are similar to those of a pawnee. If the property be destroyed without fault on his part, he cannot, while thus holding it as security for his debt, be held to account for it. But for the net proceeds of the income or profits, accruing to him before the destruction, he would be accountable. 1 Pothier on Obligations, 142, P. 1, c. 2, art. 1; Story on Bailments, § 286, 287, 332, 351; 2 Kent’s Com. 578; 4 Kent’s Com. 138, 139.

The cases of Flanders v. Barstow, 18 Maine, 357, and Bank v. Fox, 19 Maine, 99, were decided before August 1, 1841, when the statute giving the mortgager of personal property a right of redemption, took effect.

Upon the principles stated, the defendant is not entitled to the set-off claimed, and according to the agreement, he is to be defaulted,-and judgment must be entered for the plaintiffs, for the amount of their demand, with interest from the date of the writ.