Calkins v. Clement , 54 Vt. 635 ( 1881 )

The opinion of the court was delivered by

Redfield, J.

This action is replevin for one horse. The cause is submitted upon a case stated, with certain exhibits. The defendant, on the 15th of July, 1879, conveyed this horse, with other property, to the plaintiff, by a written instrument without seal, in consideration of $200, with the condition annexed, “ that if said Clement shall draw timber and pay, or cause to be paid, the above $200, on or before the 2d day of April next, then said deed to be null and void, otherwise in full force in law.” The case stated does not show whether the timber had been drawn, or the two hundred dollars paid.

I. The plaintiff had no title to the horse until the 2d' day of April elapsed, and the condition remained unfulfilled. We think the plaintiff should show a breach of the condition, before he could rightfully assert title and possession to the horse. The defendant claims in argument that the condition remains unbroken.

II. We think the provision of the statute in the case of chattel mortgage, for the advertisement and public sale of such property, was intended to supersede other remedies, and is exclusive. If the debt remained unpaid on the 2d day of April, and the defendant, on proper demand, had refused to surrender the possession of the horse to the plaintiff, he might proceed to a sale, under the statute ; and it is probable that detinue, and perhaps replevin, would lie, in order to obtain the possession of the property, to be disposed of under the provisions of the statute.

III. But the most formidable objection to the plaintiff’s recov-; ery is that by operation of the foreclosure this debt had been paid. The defendant had given his notes of $1,700 for the purchase of the land, payable in seventeen annual instalments of one hundred dollars each year for seventeen years, and taken a bond for a deed. Some two years afterwards, and after two of said notes had become due, the defendant gave this chattel mortgage, to secure and pay two hundred dollars of the purchase price of the land ; and as but $200 had become due, with the interest, the law will intend and presume that it was the $200 which had matured, and fallen due, which was to be paid by the contract to get out lumber, secured by the chattel mortgage. When the decree of foreclosure was made, less than $400 of the purchase price of the land had become due ; and it was for the non-payment of the portion of the debt that had matured, that the decree became absolute. The land was of more than sufficient value to pay that portion of the debt; and the decree operated as a payment pro tanto, to the extent of the value of the land. Hence, the debt to pay which the chattel mortgage was given had become paid and extinguished by operation of the decree. When a decree becomes absolute, it operates as a purchase of the estate by the mortgagee, in payment of the mortgage debt, if the value of the estate be equal to the amount of the decree, if less than that value, then as a payment pro tanto. Lovell v. Leland, 3 Vt. 581; Paris v. Hulett, 26 Vt. 308. See also 15 Vt. 113 ; 36 Vt. 122.

The result is that the judgment of the County Court is reversed, and judgment that defendant have the return of the property replevied, and recover damages for the detention of the property replevied, to be assessed by the clerk of Essex County Supreme Court, and his costs.