Bryan v. Smith , 13 Daly 331 ( 1885 )

Charles P. Daly, Chief Justice.

The jury have passed upon the only question that there was in this case—the bona fides of the mortgage—upon which they have found for the plaintiff; and there being ample evidence to sustain their finding, it cannot be reviewed.

One of the conditions of the mortgage was that if the mortgagors should, at any time, before the day of payment of the mortgage, suffer any attachment or any other process against property to be issued against them, that then the sum of money mentioned in the mortgage should become instantly due and payable; and that the plaintiff was then authorized and empowered to take and carry away the property mortgaged; to sell and dispose of it; and out of the money arising from the sale, to retain and pay the amount mentioned in the mortgage, and all charges, rendering the surplus, if any, to the mortgagors. When the attachment, therefore, was issued against the mortgagors, the sum named in the mortgage became due, and the plaintiff’s right to the possession of the property was thereupon absolute (Champlin v. Johnson, 39 Barb. 606), and when he demanded it of the sheriff, the sheriff could not lawfully withhold it from him, for, as against the plaintiff, the mortgagors had then no interest in it to which the process in the sheriff’s hands could attach, or which could be levied upon and sold under the judgment which was subsequently recovered against the mortgagors (Hall v. Sampson, 35 N. Y. 274; Galen v. Brown, 22 N. Y. 37, 39, 41). Chattels which have been mortgaged may be seized under an execution where, at the time of the seizure, the mortgagor is entitled, as against the mortgagee, to the possession of them, for a definite length of time thereafter (Hull v. Carnley, 11 N. Y. 501; S. C., 17 N. Y. 202; Goulet v. Asseler, 22 N. Y. 225, 230), and the purchaser at the sale upon the execution takes the property subject to the mortgage, and acquires the right to redeem it by the payment of the amount due (Saul v. Kruger, 9 How. Pr. 509). But that is not this case. Here, by the terms of the instrument, the mortgage debt had- become due, and the mortgagors, as against the plaintiff, had no right to the possession. All that they had was the right of redemption, which is not subject to levy and sale upon execution, unless united with the right to the possession of the chattel for a definite period (Mattison v. Baucus, 1 N. Y. 295).

When the property was demanded of the sheriff on behalf of the plaintiff he said he should hold it, until the plaintiffs in the attachment, who are the defendants in this suit, gave a bond of indemnity, which they did. One of them, when the plaintiff’s agent offered to'give security if the wagon were given up, said he would like $150, to take the place of the wagon, and that the defendants should have only the same lien upon the $150 that they had on the wagon; the $150, I infer, being equal to the value of the property and charges, as the claim in the attachment was but for $89.09 ; and as it seems by the plaintiff’s letter, which accompanied the delivery of the check to the sheriff, this was the arrangement that was carried out. It appears by the statement in the letter, that the check was to be substituted for the plaintiff’s property, and it “ and the money it represented,” was to remain the plaintiff’s property subject only to any valid and subsisting lien which the defendants had upon the property when delivered up. There was no lien upon it. None had been or could be acquired by the sheriff seizing it under the attachment; for, by that very act, the mortgage became due, and the plaintiff was entitled at once to the possession of it.

The plaintiff was entitled to recover. The check was not given as a voluntary payment. The plaintiff was anxious and offered to give the indemnitors security, in place of it, and they said that they would like $150, to take the place of the wagon; and with this understanding, the check was given, and the property was delivered to the plaintiff. They agreed that they were only to have the same lien upon the $150 that they had on the wagon; and the plaintiff accordingly brought this suit enabling them, if they had any lien upon the $150, to establish it, which they did not.

The defendants have not, in their points, referred to any of the exceptions taken; from which it may be inferred that they do not rely upon any one of them, as ground for a new trial; and it is our opinion that they afford none.

Allen, J., concurred.

Judgment affirmed.