McGuire v. Benoit

Alvey, J., delivered the opinion of the Court. This is an action of replevin, instituted on the 17th of February, 1869, to recover certain goods and chattels from the appellees that they had previously mortgaged to the appellant, the plaintiff below. The mortgage is dated the 1st of November, 1868, and was made to secure the payment of two promissory notes of that date, payable at three and six months from date respectively. The mortgage contains, besides a covenant to pay the notes at maturity, covenants in reference to insurance of the property mortgaged, and for the completion of certain partnership engagements, &c., and among its provisions is this : “that until default in any of the conditions and covenants herein contained, and until the non-payment of said two promissory notes at maturity, the said Benoit and Coyle shall possess and use the property hereby mortgaged.” And it is further provided, “that upon default, as aforesaid, to pay said notes and perform ¹⁸⁶ said covenants, the said McGuire, his personal representatives and assigns, may take immediate possession of said property, and sell the same at public auction,” &c.

The defendants pleaded non cepit, property in themselves, and their right of possession, to which several pleas issues were joined. At the trial the plaintiff gave in evidence the mortgage, and the two promissory notes therein referred to, and proved that, at the time of bringing the suit, the note payable at three months was over due and had not been paid, and that the defendants had failed to comply with their covenants in other respects; but that the other note was not then due. Upon this evidence the Court below instructed the jury that, as both of the notes were not due and payable at the time of the action brought, the verdict should be for the defendants; to which the plaintiff excepted. And whether this instruction was right, in. view of the terms of the provision of the mortgage in regard to the possession of the property by the defendants, is the sole question in the cause.

By the execution of the mortgage the legal estate became at once vested in the mortgagee, and if there had been no condition as to the mortgagors’ right to retain possession until default, the right of possession would have followed the legal estate, and vested in the mortgagee from the time of