Bragdon v. Penney

Dioeinson, J.

Action of replevin. The case, as shown by the evidence on the part of the plaintiff, was substantially as follows: The plaintiff, who had formerly owned the property, had sold it to Tibbs & Halloran, and taken a mortgage back from them. After-wards, Tibbs & Halloran “abandoned the property,” and Schuler (to whose rights this defendant has succeeded) having come into possession of it, and the mortgage being due and unpaid, this action was commenced to recover the possession. The defendant offered to prove that the plaintiff, taking possession of the property after its abandonment by the mortgagors, sold the same to Schuler through one Mann, whom the plaintiff had authorized to make such sale. An offer was also made to prove that the mortgagors also authorized the sale. This evidence was rejected, and a verdict was ordered for the plaintiff.

The evidence should have been received. Whether the mortgagors’ right of redemption had been effectually relinquished or not, the facts offered to be shown would have constituted a defence to this action. Whether the title of the plaintiff was qualified by a right of redemption remaining in the mortgagors, or had become absolute, he transferred such title as he had to Schuler when he assumed to sell to him the property, and the plaintiff should not afterwards be heard to deny that by such sale Schuler acquired the title, at least as against himself, the vendor.

The judgment must be set aside, and a new trial awarded.