
    Bertram S. Peacock vs. Berta E. Rich and Edward M. Small.
    Cumberland County.
    Decided October 17, 1925.
   An action of replevin to recover possession of certain household goods. It was reported to this court on an agreed statement of facts, the writ and certain exhibits.

From the report, it appears that a mortgage of the replevied chattels was given by the defendant, Berta E. Rich, and her husband, Payson Rich, to the defendant, Edward M. Small, under date of April 4th, 1923 to secure the payment of the principal sum of $100.00 in two months from date with the right of possession in the mortgagor until a breach of the conditions; on December 1st, 1924, the defendant, Berta E. Rich, conveyed the mortgaged chattels to the plaintiff by a bill of sale and mortgage; on December 29th, 1924, the defendant, Edward M. Small, began foreclosure of his mortgage by one of the methods provided by Statute; and on January 19th, 1925, this action was brought to recover possession of the goods which the agreed statement admits were in the possession of the defendant, Berta E. Rich, and were never in the possession of the defendant, Edward M. Small, unless it otherwise appears from the agreed statement. From the agreed statement and mortgage, it appears he was entitled to possession, there having been a breach of the condition of the mortgage, but there is nothing to indicate he ever took or had possession. Quite the contrary. The officer’s return shows that the goods were not taken from the possession of the defendant Small.

There is no ground, therefore, upon which an action of replevin could be maintainec[ against him.

Roland H. Peacock, for plaintiff.

Frank A. Morey, for defendant.

The defendant, Berta E. Rich, having suffered a default, the entry as to her will be, Judgment for the plaintiff. And as to the defendant Small, Judgment for the defendant.  