Rice v. Dillingham , 1881 Me. LEXIS 12 ( 1881 )

Appleton, C. J.

The defendant is the assignee of a mortgage and notes, given by one Abner R. Hallowell, to the plaintiff, and by him assigned to the defendant as security, for a loan to him from the defendant, payable in three months from the twenty-first day of June, eighteen hundred and seventy-eight. The plaintiff neglected to make payment at the time specified. The defendant as assignee, foreclosed the mortgage. Shortly after the foreclosure, the plaintiff tendered the defendant the full amount due and costs, and demanded a reconveyance of the estate acquired by virtue of the assignment and the foreclosure, which being declined, the plaintiff brought an action of trover for the notes and mortgage before mentioned. We think the action is not maintainable.

The assignment of the notes and mortgage was as collateral security. It transferred tlie legal title to them. Being for security of a loan it constituted a mortgage.' Whether it was a legal or an equitable mortgage, it matters not. The cases cited by the counsel for the defendant abundantly show that the transaction would be regarded as a mortgage. Slee v. Manhattan Co. 1 Paige, 48; Pond v. Eddy, 113, Mass. 149 ; Cults v. York Manufacturing Co. 18 Maine, 191.

The defendant having the legal title had perfect right as assignee to foreclose. Foreclosing, he held the estate as security for his debt. A tender of the full amount due might entitle the plaintiff to reconveyance in equity, but it would not authorize the maintenance of an action of trover for not reconveying real estate which the defendant holds as equitable mortgagee.

"A pledge of goods or chattels is completed by a delivery of them; it does not transfer the title; it only gives the the pledgee a lien on them. If there be a transfer of the property it is more than a pledge, it is a mortgage.” Edwards on Bailments § 186 ; Langdon v. Buel, 9 Wend. 80. In Halliday v. Holgate, L. R. 3 Ex. 299. Willes, J., says: "There are three kinds of security; the first, a simple lien; the second, a mortgage passing the property out and out; the third, a security intermediate between a lien and a mortgage, viz. : a pledge, where by contract a deposit of goods is made security for a debt, and the right to the property vests in the pledgee so far as is necessary to secure the debt.” Until the debt is paid the pledgee has only the present interest. The plaintiff’s rights are those of an equitable mortgagor and not those of a pledgor. His remedy, whatever he may have, is in equity.

Plaintiff nonsuit.

Barrows, Virgin, Peters, Libbey and Symonds, JJ., concurred.