Becker v. Dunham

Berry, J.

The plaintiff seeks to recover the value of certain goods alleged to have been wrongfully taken and converted by defendant. Plaintiff’s title to the goods rests upon two chattel mortgages of the same, running to her. One of the mortgages was given to secure a note of $340 belonging to the plaintiff, and, as respects that mortgage, her right of recovery is clear. The other mortgage was given to secure a note for $200, which belonged to her husband in his lifetime, and which, at the time when the mortgage was given, belonged to his estate, to which it stiff belongs, he having deceased. At the time when this note was made, he (the husband) handed it to the plaintiff, (as was his custom with respect to such papers,) but, so far as appears, it was handed to her as a depositary merely, and without any intention to give it to her, or to give her any interest in it.

The defendant, as a proper officer, seized the goods upon sundry writs of attachment against the mortgagors, and subsequently sold the same to satisfy the judgments recovered in the actions in which the attachments issued. At the time of the seizure, the plaintiff was rightfully in possession of the goods, each of the mortgages authorizing her to take such possession at any time when she thought proper, and the note belonging to her being due and unpaid. But as she had not sold the mortgaged goods, or foreclosed, the mortgagor had a subsisting right of redemption. Gen. St. 1878, c. 39, § 8. This right was subject to the claims of creditors, and could, undoubtedly, be reached by garnishment. Gen. St. 1878, c. 66, § 183. Whether it could be properly reached in any other way, as, for instance, by a levy upon the mortgaged property in the rightful possession of the mortgagee, may *35 well be doubted. But, however this may be, the mortgaged property in this ease was, in fact, seized upon the writs of attachment while in the rightful possession of the mortgagee, and sold to satisfy the judgments, so that the practical question is, what can the plaintiff recover? She is entitled to recover the value of her interest in the goods', and no more. Parish v. Wheeler, 22 N. Y. 494 ; La Crosse & Minnesota Packet Co. v. Robertson, 13 Minn. 291 . She owned no interest in the note belonging to her husband’s estate, and, therefore, so far as the mortgage given to secure it is concerned, it secured nothing belonging to her, and, for that reason, gave her no interest in the goods. Her interest in the goods is, therefore, limited to the amount of the $340 note.

The court below was, therefore, wrong in giving judgment for the full value of the goods, to wit, $463, this sum exceeding the amount of her note. The case is, accordingly, remanded to the district court, with directions to modify the judgment, so as to reduce the amount recovered to the amount of the note for $340.