Kelly v. Bogardus ( 1883 )

Cooley, J.

The bill in this case sets forth the purchase by complainant, in October, 1879, of a Valuable horse, and also a sulky, a harness, three blankets and a girth, which had at one time been owned by the defendant Bogardus that on March 3, 1880, the defendants by their agents and servants took the horse from complainant’s possession, and removed the same to the province of Ontario where they now secrete it; that defendant Winans claims to have a chattel mortgage on the property so purchased by the complainant, and also on other property, made by Bogardus while he' was owner; that after giving the mortgage Bogardus sold the horse, sulky, harness, blankets and girth, but retained the other property, the value of which exceeds the amount of the lien claimed by Winans under her mortgage; that no-steps have been taken by Winans to advertise and sell the property in foreclosure; and the bill prays that Winans “ be decreed to satisfy her pretended lien, if any she has, from, upon and out of the said property set forth and described in said chattel mortgage under the order and decree of this honorable court, and that the said property be sold in the following order : First, all property described in said pretended mortgage remaining in the possession of said Bo-gardus at tlife time of the sale of the said property first above named, now owned by your orator, and that the said property first above described as belonging to your orator be not resorted to in satisfaction of said lien until all the-residue of the said property has been sold and disposed of for the satisfaction of the said pretended claim.”

The defendant Winans answered, and proofs were taken. It appeared that her mortgage was for the sum of $127.25,. and contained a clause authorizing her to take possession whenever she should deern herself insecure. It was to become due May 14, 1880. The suit was begun March 8,. 1880.

It will be seen that the relief prayed by the bill was a foreclosure of the chattel mortgage by the defendant "Wm-ans, and a sale of the property mortgaged in such order as would protect complainant in his purchase if the other property should be sufficient for the satisfaction of the Winans lien. But no such foi’eclosure could be had until the mortgage debt was due ; and this, as has been seen, was not the case.

The circuit judge ordered the bill dismissed. He had, we think, no alternative, and the decree must be affirmed with costs.

The other Justices concurred.