Richmond Type & Electrotype Foundry v. Carter , 133 Tenn. 489 ( 1915 )

Mr. Justice Green

delivered the opinion of the Court.

This is an action of replevin brought to recover certain printing machinery from Oeorge Carter and Mike Holloran, deputy sheriffs of Davidson county. The officers levied pn the said equipment under attachment, and the plaintiff brought this suit, claiming to be entitled to the possession thereof. There was a judgment for defendants below. The court of civil appeals reversed this judgment, and the defendants have filed a petition for certiorari.

It appears that the equipment of a publishing company in Nashville, known as the Daily Record Company, was sold to R. H. Yancey, Jr. Yancey executed purchase-money notes for the said equipment, and to secure the payment of these notes likewise executed a mortgage on the equipment to the Daily Record Company. It seems that the Daily Record Company was indebted to the Richmond Type & Electrotype Company, the plaintiff in this suit, and transferred the Yancey notes to the plaintiff to secure its indebtedness to plaintiff. There was no assignment by the Daily Record Company to the plaintiff of the mortgage made to the Daily Record Company by Yancey to secure the payment of these notes.

An attachment was levied on this printing outfit by certain creditors of the Daily Record Company, and under this attachment the defendant officers had possession of the property when it was replevined herein by the plaintiff.

The principal defense is that, inasmuch as no assignment of the mortage securing these Yancey notes was made to the plaintiff, plaintiff never became vested with such a property right in the machinery as to enable it to maintain with reference thereto an action of replevin at law. The Yancey notes were transferred by the Daily Record Company to the plaintiff, and it is insisted for plaintiff that such transfer of the notes also effected a transfer of the mortgage securing the notes and conferred upon the plaintiff sufficient title to the property to enable it to maintain replevin as stated above. The circuit judge sustained the contention of the defendants. The court of civil appeals reversed this action and rendered judgment for the plaintiff.

The court of civil appeals based its action on the case of Clark v. Jones, 93 Tenn., 641, 27 S. W., 1009, 42 Am. St. Rep., 931, in which it was.held that the transfer of notes secured by a mortgage carried with it the lien created by the mortgage. Clark v. Jones cited Graham v. McCampbell, 19 Tenn. (Meigs), 52, 33 Am. Dec., 126; Cleveland v. Martin, 39 Tenn. (2 Head), 128; Roberts v. Francis, 49 Tenn. (2 Heist.), 127; Anthony v. Smith, 28 Tenn. (9 Humph.), 511; Thompson v. Pyland, 40 Tenn. (3 Head), 537.

Clark v. Jones and other cases, supra, were all eases in which the transferees of notes secured by mortgage or other liens upon land came into equity and sought to enforce their rights upon the land. In these cases it was held that the transfer of such notes so secured carried the liens upon the land without formal assignment of the instrument reserving the liens. This is true in equity and in courts of equity. Such transferees are entitled to enforce their liens so acquired.

This, however, is a suit at law, and the question is whether the plaintiff has such title to or property in the mortgaged chattels as to permit an action of re-plevin for the recovery thereof to be brought in its name.

An assignee of mortgage notes to whom no assignment of the mortgage itself is made becomes merely the equitable owner of the mortgage and ordinarily cannot maintain in his own name an action at law respecting the property.

“An assignee of mortgage notes is, however, the mere equitable owner of the mortgage, and such an equitable assignment will not entitle him to maintain an action at law for conversion of the property; such an action can be maintained only in the name of the mortgagee.” 5 R. C. L., 442.

See Crain v. Paine, 4 Cush. (Mass.), 483, 50 Am. Dec., 807; Baker v. Seavey, 163 Mass., 522, 40 N. E., 863, 47 Am. St. Rep., 475; Ramsdell v. Tewksbury, 73 Me., 197; Jones Chattel Mortgages, sec. 503.

In Smith’s Ex’rs v. Mabry, 17 Tenn. (9 Yerg.), 313, this conrt held that an equitable title to slaves would not support an action of detinue.

The same general or special property is requisite for a plaintiff to maintain either detinue or replevin. Caruther’s History of a Lawsuit (3d Ed.), pp. 134, 135. This court has likewise held that the equitable owners of property could not maintain a suit in replevin. Rice v. Crow, 53 Tenn. (6 Heisk.), 28.

So we must conclude that the court of civil appeals erroneously held that the plaintiff could maintain this action of replevin in its own name.

It appears from the motion for a new trial made below that the plaintiff sought to amend his warrant in the circuit coiirt so as to bring the suit in the name of the Daily Record Company for the use of plaintiff., This amendment was not allowed by the circuit judge, however. Had the suit been so brought, it might have been maintained. The refusal of the circuit judge to permit this amendment is not made the basis of any assignment of error in this court by the. plaintiff, and indeed this action of the circuit judge only-appears in the motion for a new trial, not in the bill of exceptions. As we have pointed out in Sherman v. State, 125 Tenn., 19, 140 S. W., 209, a motion for a new trial is merely a pleading and cannot be looked to as evidence of what occurred on the trial. So the plaintiff is not in position to obtain any benefit of tbe refusal of tbe circuit judge to permit tbe amendment sought to be made there.

Tbe plaintiff insists that an assignment of tbe mortgage .was effected by a delivery of tbe same to it, and that no formal writing was necessary for this proposition. Plaintiff refers to De Liquero & Crozier v. Munson, 58 Tenn. (11 Heisk.), 18, and Cornick v. Richards, 71 Tenn. (3 Lea), 1. One difficulty is that tbe record does not even show delivery of tbe mortgage to the plaintiff. The ease was tried on an agreed statement, and the mortgage appears in the record as an exhibit to this statement. Tbe record does not show who brought forth tbe mortgage, however, nor is there anything to indicate that a delivery of this paper had been made to the plaintiff.

Other authorities cited by the plaintiff relate to cases where the mortgage as well as the notes secured thereby had been assigned, and consequently are not in point here.

The writ of certiorari is, accordingly, granted, the judgment of the court of civil appeals reversed, and the judgment of the circuit court affirmed.