Skiff v. Solace

Trespass. Constructive possession. Chattel mortgage. Although a mortgagee of chattels may have the right, by the terms of the mortgage, to take possession of the property mortgaged, whenever he deems that he is in danger of losing the mortgage debt by delaying its collection until the lime specified for its payment, yet this will not give him the constructive possession of the property, so as to enable him to maintain trespass, unless the contingency have happened, upon which his right to take possession depends, and have been followed by some act upon his part, asserting the right. A mortgage of chattels, executed in the state of New York, and valid, by the laws of that state, without a change of possession, will not protect the property from attachment in this state, by- creditors of the mortgagor, if found here in the possession of the mortgagor, though brought here hy him for a temporary purpose.

Trespass for two horses, a wagon and harness. Plea, the general issue, and trial by jury, June Term, 1849, — Bennett, J., presiding. The plaintiff proved, that the property in question belonged to one-Perkins, who resided at Schroon, in the state of New York, and gave in evidence a mortgage of the property executed to the plaintiff by Perkins, at Scroon, April 27, 1848, and recorded in the proper office in the state of New York. This mortgage, reciting that Perkins was indebted to the plaintiff in the sum of $160,00, conveyed to the plaintiff, among other things, the property in question, as security for its payment, and contained a condition, that, if Perkins should pay to the plaintiff the debt aforesaid, with the interest, — paying $50,00 within three months from the date of the mortgage, $50,00 in six months, and the residue in one year, then the mortgage should be void; but that, if default should be made in such payments, or if the plaintiff should at any time deem himself in danger of losing the debt, by delaying collection until the time specified for its payment, the plaintiff might take possession of the mortgaged property at any time, either before or after the expiration of the time specified, and sell it, or so much as should be necessary to satisfy the debt, interest and expenses, — giving such notice as is required by law for constables’ sales. The plaintiff also proved, that the mortgaged property had always remained in the possession of Perkins, at Schroon, both previous and subsequent to the execution of the mortgage, until May 2, 1848, when Perkins came to Bridport in the county of Addison, where the plaintiff resided, and brought the property with him for a temporary purpose ; and that the next morning after the arrival of Perkins at Bridport the property was attached by the defendant, who was a deputy sheriff, upon writs in favor of creditors of Perkins, who were citizens of this state, and was subsequently sold upon executions duly obtained in those suits. The plaintiff also gave evidence tending to prove, that when Perkins came to Bridport, with the property, he came to the plaintiff’s house, and remained there that night, and that an arrangement was made between him and Perkins, that evening, by which the plaintiff was to take the property in satisfaction of the mortgage debt, and that Perkins should return home the next morning, leaving the property in the plaintiff’s possession, — but that the property was taken by the defendant the next morning, before Perkins left the plaintiff’s house; — but the evidence upon the part of the defendant tended to contradict this, and to show, that the property remained, until the time of the attachment, in the possession of Perkins, with the intent, upon his part and that of the plaintiff, that he should return with it to Schroon on the morning of the attachment and retain possession of it, as before. It being admitted, that the mortgage was bona fide in fact, and made to secure a just debt, the court decided, that as by the laws of New York the mortgage was valid against the creditors of Perkins, without an actual change in the possession of the property, the defendant was not justified in attaching and selling the property, although the mortgagor retained the possession and had the property in this state, for a temporary purpose, when it was attached. Verdict for plaintiff. Exceptions by defendant. 1. In the present case, whatever the plaintiff’s lien might have been, under the chattel mortgage, he was not entitled to and did not have the possession of the property at the time of the attachment. 5 Vt. 97, 274, 328. 11 Vt. 587. The evidence tending to show a change of possession under a subsequent contract is of course out of the case, since the defendant’s evidence upon this point was treated as immaterial, and the decision placed solely upon the lien created by the mortgage. 2. The plaintiff acquired no lien, under the mortgage, that was valid in this state against creditors, if unaccompanied by a change of possession. Liens of any description, acquired under the laws of one jurisdiction and invalid by the laws of another, must always give way, in the courts of the latter, when in conflict with liens acquired there, by its citizens, under its laws. As between the parties to such a lien, it is treated as valid, and is governed by the lex loci contractus ; but as to creditors, in the country where it is sought to be enforced, it is otherwise. For the right of priority is no part of the contract, but it is a personal privilege, dependent on the laws of the place where the right is tried, so far as the citizens of that place are concerned. The principle of comity, under which foreign laws are recognized and enforced as between the parties to contracts, never has been and never should be extended, so as to interfere with the rights of those not parties to such contracts, or affected by such laws. Story’s Confl. of Laws, §§ 323-326. Harrison v. Sterry et al, 2 U. S. Cond. R. 260. Potter v. Brown, 5 East 124. Ingraham v. Geyer, 13 Mass. 146. Fall River Ron Co. v. Croad, 15 Pick. 11. The same rule has been established in America, as to attachments made by creditors after an assignment in bankruptcy in another state, or country. Ogden v. Saunders, 6 U. S. Cond. R. 523. Abraham v. Plestero, 3 Wend. 560. 2 Kent. 408. 5 N. H. 213. And the principle has been extended to absolute sales of personal property, made abroad and valid there, when invalid by the law of the state where sought to be enforced, and in conflict with the rights or liens of its citizens. Story’s Confl. of Laws, §§ 385-391. Lanfear v. Sumner, 17 Mass. 110. Lamb v. Durant, 12 lb. 54. 1. A chattel mortgage is a sale and transfer of the property to the mortgagee, subject, however, to be defeated, if the mortgagor perform. Hence the mortgagee becomes general owner, with right of immediate possession. Woodruff v. Halsey, 8 Pick. 333. Neioall v. Wright, 3 Mass. 138. 1 Smith’s Lead. Cas. 298. 2 Mass. 495. But if this do not necessarily result from the very nature of the mortgage, yet in this case the instrument expressly gives the right. Ownership, with right of immediate possession, is sufficient, and trespass is therefore the proper remedy. Edwards v. Edwards, 11 Vt. 588. Putnam v. Wyley, 8 Johns. 432. 2. By the laws of New York, where the contract was made, where the mortgagor resided, and where was the situs of the property at the time of making the contract, the mortgage was valid against creditors. The transfer was complete, before the property came into this state; and it came here with all its liens. Story’s Confl. of Laws 200, 324, 335. But however the rule may be in cases, where the property mortgaged is brought into the state with the intention of permanent location, comity requires, that the rule contended for should not be applied in regard to property brought into this state for temporary purposes merely. Story’s Confl. 323.