
    John Pierce versus Harrison Stevens.
    Replevin can be maintained only by one having the right to possession.
    Parol evidence is admissible to prove that, at time of making a mortgage of personal property, the parties agreed that the possession should remain with the mortgagor. Such evidence does not contradict the mortgage.
    Replevin for a horse, which Charles Pierce had mortgaged to the plaintiff, and which the defendant also claims under said Charles. The defendant offered to prove by parol that, at the giving of the mortgage, ijt was agreed by the parties to it, that the mortgager should be entitled to the possession of the horse for one year, which had not expired when this replevin suit was commenced. This evidence was rejected. The defendant, after verdict against him, filed exceptions.
    
      J. S. Abbott, for defendant.
    The writ is dated 15th of April, 1847. The mortgage bill of sale, 28th of July, 1846. The year had not expired, during which it was proposed to prove that the debtor, Charles Pierce, had the right to the possession and use of the horse. The plaintiff had not the right of possession, and so could not maintain this action, and the evidence offered should have been received. Wyman v. Dorr, 3 Maine, 183; Ingraham v. Martin, 15 ib. 373; Lunt v. Brown, 13 ib. 236; Putnam v. Wyley, 8 Johns. 432.
    
      Bronson, for plaintiff,
    submitted without argument.
   Tenney, J. orally.

— Without any stipulation to the contrary, a mortgagee of either real or personal estate is entitled to immediate possession. But the parties may legally contract that the possession may remain with the mortgager. As to personal property, such an agreement does not contradict the mortgage, and may be proved by parol. A plaintiff having no right to the possession, cannot maintain replevin.

Exceptions sustained.  