
    Clark v. Rideout.
    Where a party who had a mortgage of a pair of steers took possession of them, under a claim that he was the absolute owner of them by virtue of a sale from the mortgagor, and converted them to his own use, denying then, and upon the stand at the time of the trial, that he held or claimed them by virtue of the mortgage — Held, that trover could be maintained against him, notwithstanding such mortgage, if the jury found there was no sale.
    Trover, for a pair of steers. The plaintiff admitted that some time prior to 1856 he gave a mortgage of the steers in controversy to the defendant, to secure a note which he held against the plaintiff. The steers remained in the plaintiff’s possession until the spring of 1856, when he engaged the defendant to pasture the steers for him during that season; and in June, 1856, the defendant, under this arrangement, drove them to pasture. In November, 1856, the plaintiff demanded the steers of the defendant, at his barn, where the steers then were, and the defendant refused to deliver them, assigning as the reason that he had bought the steers of the plaintiff and paid him for them. In the winter of 1856-7 the defendant killed the steers and used the meat. The note held by the defendant against the plaintiff, secured by the mortgage, was not paid till after the steers were killed, and was then paid in full.
    The plaintiff rested his case, and the defendant moved for a nonsuit, which the court overruled, and he excepted.
    The defendant then testified that in the spring of 1856 he purchased the steers of the plaintiff^ and paid him the money for them, stating the sum paid, and where, and that he took the steers under this purchase and drove them to pasture in June, 1856 ; and that when the plaintiff demanded them of him, in November following, he refused to give them up, upon the ground that he had thus purchased them and paid for them. He testified that lie never took possession of said steers by virtue of any mortgage, or held, or claimed to hold, them under or by virtue of a mortgage ; that no part of the avails or value of said steers was ever applied on his mortgage note, but the whole of it was paid by the plaintiff. He did not produce or prove the said mortgage, nor offer any evidence as to its terms, or conditions, or anything in relation to it, nor set up any defence or justification under it. There was much conflicting testimony in regard to the sale of the steers by the plaintiff to the defendant.
    The defendant requested the court to instruct the jury that if the defendant, at the time of the demand on him for the steers, held a valid mortgage of said steers, trover would not lie for them, though he claimed them under a purchase. The court declined, and directed the jury that upon the facts in evidence they might lay the mortgage out of the case, and only inquire whether the defendant purchased the steers, or took them by agreement to pasture, and return their verdict as they should find that fact. A bill of exceptions was allowed by the court.
    
      Lull, for the plaintiff.
    The general property in a mortgaged chattel immediately vests, by virtue of the mortgage, in the mortgagee, and without an agreement to the contrary the right of immediate possession follows the general property. But as the mortgager has an interest in the property, he may rightfully retain possession of the mortgaged chattel, if there be no agreement between him and the mortgagee in reference to its possession, and may subject it to ordinary wear, but not consumption, and sell his interest in the chattel, and transfer its rightful possession to the purchaser; and this as against the mortgagee. 12 N. H. 385. The mortgagee may at any time interfere, and assert his rights of property and possession under his mortgage. If he sees fit to permit Ms rights under his mortgage to lie dormant, and to claim the mortgaged chattel by a defective title, and to appropriate it to himself under such title, then will he be a wrong doer, as much as if he held no mortgage, and then may the mortgagor maintain trover to vindicate his right of possession and qualified pi’operty. This the plaintiff conceives to be the law, when there is no agreement between the mortgagee and mortgagor as to the possession of the chattel, and thinks 12 N. H. 884, and 34 N. H. 568, although not entirely in point, to indicate this view to be correct. Where there is an agreement that the mortgagor shall retain possession for a particular time, or till the happening of a particular event, this creates for the mortgagor a special property in the chattel, and the right of immediate possession, and suspends the right of possession that would otherwise exist in the mortgagee. 34 N. H. 571. Such an interest is sufficient to enable the mortgagor to maintain trover against the mortgagee. 2 G-r. Ev., sec. 637; 2 Saund. PL and Ev. 877, 879; 1 Ch. Pl. 148. The jury, under the instructions of the court, find that the defendant agreed to pasture the steers for the plaintiff for the season, and took and drove them away under that agreement. This was, in effect, an agreement that these steers should remain in the possession of the plaintiff during the season. The defendant took the steers, drove them away, and afterwards killed them under a false claim of a title by purchase. The taking, driving away, pasturing and killing, under a claim of title by purchase, was a violation of a special property and right of possession by the plaintiff, by virtue of the agreement between the plaintiff and defendant, that the defendant would pasture the steers during the season,.as .his property, and for him, and trover is the proper form of action to right the wrong, and the nonsuit was properly refused.
    W. W. Bailey, for the defendant.
   Bell, C. J.

Tbe question is, if tbe plaintiff can maintain trover upon the facts in evidence ? Tbe destruction of tbe steers is a wrong, for which tbe defendant ought in some form to be accountable, but it does not follow that be can maintain this action.

If it appeared that tbe defendant bad a mortgage of these animals, and bad taken possession of tbe steers in tbe exercise of bis rights as mortgagee, and claimed to bold them under bis mortgage, tbe plaintiff could not maintain this action; because, though be has a special right of property, be had no right to the present possession.

Though a mortgagee has tbe general right to take actual possession of tbe mortgaged property at his pleasure, yet this right may be modified or controlled by tbe agreement of the parties; and tbe plaintiff here claims that, by the agreement of the defendant to pasture the steers for tbe season for the plaintiff, be in effect agreed that he would take tbe steers, not as moi’tgagee, but as a bailee of tbe plaintiff; in other words, be would bold possession, not for himself, but for the plaintiff as bis agent. The court see no objection to such an arrangement, nor reason why the jury might not have pi’operly regarded that as a just view of the ease, upon the proof. Tbe evidence tended strongly to show that this was tbe actual condition of tbe claims and rights of the parties. Tbe defendant was himself a witness, and testified that in tbe spring of 1856, tbe season of the pasturing, be purchased tbe steers of tbe plaintiff" and paid him the money for them, and that he took tbe steers under this purchase, and drove them to his pasture in June, 1856, and that be did not take them under or by virtue of any mortgage. Tbe jury, then, if they disbelieved the evidence of a sale, might well have concluded that tbe defendant took and held the possession, not as mortgagee, but as a bailee of the plaintiff, and as bis agent, and by bis agreement be bad waived bis right to take possession as mortgagee.

If, however, the jury-should have found that an agreement to pasture the steers might he consistent with the defendant’s right to take possession under his mortgage, still the instruction of the court was correct, that the jury might lay out of the case the mortgage, and consider only the other points of the case. The plaintiff admitted he had made to the defendant a mortgage of these steers, and nothing further appeared in relation to it. The defendant set up no title under any mortgage, he produced none, he offered no legitimate evidence of the existence of any; and he denied, in strong terms, that he took possession, or held the property by any other right than that of owner. This claim was, in its nature, entirely inconsistent with any right as mortgagee. If, having a limited right as mortgagee, a person make an absolute purchase, his mortgage interest at once ceases, being merged in the title of the owner. By insisting upon his title as a purchaser and absolute owner, the defendant-, in effect, denied the existence and validity of a mortgage, as much as if he had in terms denied it. And the jury were warranted in laying it out of the case, as not being set up or proved in the case, and as, on the contrary, being effectually disproved by the party who alone had any right to insist upon it. The plaintiff would then stand in the position of general owner, with a right to the present possession, if the defendant failed to establish his title by purchase. The interest of a bailee is, in general, divested by his destruction of the property; and it may well be doubted if a bailee for pasturing has any right to insist upon retaining possession against the general owner. Cross on Lien 25.

The motion for a nonsuit was waived by proceeding in the trial.

Judgment on the verdict.  