
    EDWARD WILLIS, Plaintiff and Appellant, v. JAMES O’BRIEN, Sheriff of the City and County of New York, Defendant and Respondent.
    I. CHATTEL MOETGAGE POE A CEETAIP SUM PAPAELE IN INSTAL-MEETS, CONTAINDTG CLAUSES that in case "default should be made in the payment of said sum above mentioned," then it should be lawful for the mortgagee to take the property mortgaged, and until "default be made in the payment of the said sum of money ” the mortgaged property
    should remain in the peaceable possession of the mortgagee.
    1. ’When does it become due so as to entffle the mortgagee to immediate possession.
    
    
      a. It will become so due on.default in the payment of the first instalment (Parker v. PrandaB, 5 Legal Observer, p. 418, overruled; Robinson v. Wilcox, % Leg. Obs. 160, approved).
    Held—That the mortgagee might recover the mortgaged property in an action of claim and dehvery from the sheriff, who had taken it on an attachment against the mortgagor after default in several instalments.
    Before Barbour, Ch. J., Curtis and Sedgwick, JJ.
    
      Decided April 7, 1873.
    Appeal from a judgment.
    The action is claim and delivery "brought to recover from the sheriff the possession of a certain coupé, and damages for its taking. The plaintiff claimed to recover under the chattel mortgage payable in instalments mentioned in the opinion, and the sheriff claimed under an attachment issued against the property of the mortgagor. The seizure by the sheriff was after the mortgagor had made default in the payment of several instalments.
    The court directed a verdict for defendant on the ground mentioned in the opinion of the General Term.
    From the judgment entered on this verdict plaintiff appeals:
    
      W. McDermott, attorney, and of counsel for appellant,
    urged:
    
      First Point. The language of the mortgage is, “ that until default be made in the payment of the said sum of money, I am to remain and continue in the quiet and peaceable possession of the said goods and chattels,” etc. The meaning of this is, that until a default shall be made in the payment of the mortgage, according to the terms of payment provided in the 
      mortgage, the mortgagor should remain in possession. When any instalment remains unpaid there is clearly a default, and plaintiff is entitled to take possession until the amount due is paid (Robinson v. Wilcox, 2 Legal Obs. 160).
    
      Second Point. It is well established, that upon nonpayment of an instalment due upon a mortgage of real estate, the mortgagor may commence an action of foreclosure for the sum due. The same principle must apply to chattel mortgages; of course, the mortgagor can only retain possession until the amount due is paid, but he is nevertheless entitled to possession until it is paid.
    
      Third Point. There being no dispute as to the facts, the judgment should be reversed, and judgment ordered for plaintiff for $450, and interest.
    
      Brown, Hall & Vanderpoel, attorneys, and A. J. Vanderpoel, of counsel for respondent,
    urged :—
    
      First Point. The plaintiff was not entitled to the possession of the property in question under the first mortgage, at the time it was levied upon by the defendant j there had been no default in the payment of the mortgage debt, and, therefore, the mortgagor had a leviable interest in it under the attachment.
    1. By the terms of the mortgage the default, to entitle plaintiff to take possession, was to be in the payment of “said sum of money,” viz., $695, and not of any portion of that sum. At the time of the levy the whole sum had not become due. It has been expressly held that where the mortgage debt was to be paid by instalments, and the default provided for in words exactly similar to those in the mortgage under consideration, there was no default until the whole sum became due (Parker v. Prandall [N. Y. Com. Pleas, 1847], 5 N. Y. Leg. Obs. 418).
    2. The mortgage was intended solely as a security for the debt; by its terms the mortgagor was to have twelve months and one week within which to pay the notes secured by it, and the construction contended for by the appellant would enable the mortgagee to collect the whole amount before he could enforce payment of the notes, and this would be unjust towards the mortgagor.
    3. The form of this mortgage was not the usual one adopted in cases where the failure to pay any part of the mortgage debt as it becomes due, is to be considered a default (2 Keyes, 217). The intent of the parties is shown by the fact that it was not in the form adopted by them fifteen days later in their second mortgage. There the language is “ default in the payment of any one month of the said sum above mentioned.” If the parties had intended to have the same effect in each they would not have used language so different. There could have been no other object in executing the second mortgage than to avoid this very difficulty, and make it payable on default in payment of one of the portions.
    4. If the plaintiff was not entitled to take possession, i.e., if there was no default, the mortgagor had an interest liable to levy and sale (Hall v. Carnley, 1 Kern, 501; Fairbanks v. Bloomfield, 5 Duer, 434; Hall v. Samson, 23 How. Pr. 484).
    
      Second Point. The testimony showed that the plaintiff had sustained no damage by the seizure under the attachment.
    The property was returned to the mortgagor two weeks after the seizure by the sheriff, and there was no evidence that the mortgagee’s security was in the least impaired by any act of defendant.
    
      Third Point. The court properly directed the jury to find a verdict for the defendant.
    1. Plaintiff had shown no title to the property under the first mortgage, and therefore no cause of action.
    
      Fourth Point. The judgment should be affirmed.
   By the Court.—Sedgwick, J.

The counsel agree that the court "below directed a verdict for the defendant, on the ground that the plaintiff did not give testimony to show that he was entitled to possession of the property in question, which was a coupé. This depended upon whether, by the terms of a mortgage of that coupé (under which, as mortgagee, the plaintiff claimed), there had been a default which entitled him to take possession of the chattel.

The condition of the mortgage was, that if the mortgagor should pay the mortgagee (plaintiff) the “full sum of $695, lawful money of the United States, one note, $95, to be paid on the 14th of September, 1869, and twelve monthly notes at $50 per note, to be paid on the first day of each and every month, making the whole amount to be paid in twelve months and one week from date, then these presents shall be void.”

The mortgage further provided that in case “ default “shall be made in the payment of the said sum above “mentioned, then it” should be lawful for the plaintiff to take the property mortgaged, and until ‘ ‘ default be “made in the payment of the said sum of money,” the mortgaged property should remain in the peaceable possession of the mortgagor.

At the time of the taking of the coupé by the defendant under an attachment, nine of the notes specified in the condition of the mortgage had fallen due and were unpaid. If this was a default, according to the meaning of the mortgage, then the plaintiff was entitled to possession, otherwise he was not (48 N. Y. R. p. 550; 42 N. Y. R. p. 322; 35 N. Y. R. p. 274).

The defendant’s counsel argues that in the meaning of the mortgage there was not a default in the payment of the gross sum, until the date for the payment of the last instalment had passed without payment of the whole sum. That would be true if the contract had been that the whole sum was to be paid on that day. But the mortgagor had agreed that before that last day should come he would make payment of eleven instalments, on certain days. When the carriage was taken by the defendant, the mortgagor had failed on nine several days to pay the instalments due on those days. It cannot be questioned he made a default in something, and that •could be in nothing else than in the payment of the gross sum, as he had agreed to pay. What he did not pay was what, if paid, would have been parcel of the gross sum. I think it should have been held that there had been a default which authorized the plaintiff to take possession, and that he was entitled to the possession against the defendant.

The case cited by the defendant’s counsel (5 N. Y. Leg. Obs. p. 418) supports his position. The report, however, is but a syllabus of a case, and though later than Robinson v. Wilcox, 2 Leg. Obs. p. 160, is not of the same weight as that case. Robinson v. Wilcox is a fully reported case. The reasoning is satisfactory, and in my opinion should be followed.

The defendant’s counsel has urged, that inasmuch as the coupé was returned by the defendant to the mortgagee, from whose possession he took it, it is evident that the plaintiff can recover but nominal damages, and for that there should not be a new trial. I do not think that the printed case shows (with sufficient certainty to uphold this position) that the plaintiff was entitled to only nominal damages, and a new trial cannot be refused on that ground.

The only propositions discussed on the argument of the case have been considered. The conclusion is that there should be a new trial, with costs to appellant to abide the event.  