
    Richard Cody and James Cody, Composing the Firm of Cody Brothers, Respondents, v. The First National Bank of Springfield, Ohio, Appellant.
    
      Chattel mortgage—suit by the mortgagor for conversion of the chattels by the mortgagee, because sold under false representations impairing the price realized — the remedy is by action to redeem.
    
    In an action brought to recover damages alleged to have been sustained by the plaintiff by reason of the conversion of a steam roller, the complaint alleged that the plaintiff, as a part of the purchase price of the steam roller executed two promissory notes, and to secure payment of the notes gave a Chattel mortgage on the steam roller which provided that if default should be made in the payment of the notes then it should be lawful for the mortgagees or their assigns to take possession of said property, and hold the same until the maturity of the note last falling due, and at that time to sell the property for the best price they could obtain, and out of the proceeds of the sale to retain the sums represented by said notes or so much thereof as might remain unpaid; that at a time subsequent to the maturity of the last note the defendant, who, by mesne assignments, had obtained the mortgage, took possession of the mortgaged property and sold the same at public auction; that upon such sale certain false and fraudulent representations were made by the defendant as to the mortgaged property which seriously affected its value in the estimation of intending purchasers, and caused the same to be sold for a much less price than would have been realized had the same been honestly represented. The complaint further alleged that such acts constituted a conversion of the property, and demanded judgment for money damages.
    
      Held, that the complaint was demurrable;
    
      That the only interest which the plaintiff had in the property after the default was-a right to redeem, which right was not sufficient to enable him to maintain am action, at law for conversion;
    That even if it were possible to spell out of the complaint sufficient facts to-sustain an action to redeem, the pleading could not be sustained as the action was not brought, or the pleading framed, in its prayer for judgment, for any ' form of equitable relief.
    Appeal by the defendant, The First National Bank of Springfield, Ohio, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of .Kings on the 20th day of September, 1900, upon the decision of the court, rendered after a trial at the Kings County Special Term, overruling the defendant’s demurrer to the complaint. ■ .
    This appeal was transferred from the second department to the 'first department.
    
      Glifton P. Williamson, for the appellant.
    
      James T. O'Neill, for the respondents.
   Hatch," -J. :

This action was brought to recover the sum of $1,600, with interest, as damages averred to have been sustained by plaintiffs by reason of the conversion by the defendant of a steam roller mortgaged by the plaintiffs by a chattel mortgage given to secure a part of the-purchase ■ price thereof, which mortgage, by mesne assignments,, became the property of the defendant and was by it foreclosed. It is averred in the complaint that the plaintiffs purchased the roller-on or about the 12th day of January, 1897, for $2,900, and gav& two promissory notes for $733.33 each, payable respectively six and nine months after date, in part payment for the same, and made and executed a chattel mortgage on the roller to secure the payment of' the notes, in which it was provided that, if default should be made-in the payment of the sum or sums represented by the notes at. maturity, then it should be lawful for. said mortgagees, or their assigns, to take possession of said property at their option, and hold the same until the maturity of the note, last falling due, and, at that: time, to sell the property for the best price they could obtain, and,, out of the proceeds of the sale, to retain the sums represented by-said notes, or so much thereof as might -remain uppaid; that at' a time subsequent to the maturity of the last note the defendant took possession of the mortgaged property and sold the same at public auction; that upon such sale certain false and fraudulent representations were made by the defendant as to the mortgaged property, which seriously affected its value in the estimation of intending purchasers and caused the same to be sold for a much less price than would have been realized had the same been honestly represented; that such acts of defendant constituted a conversion of the property.

The defendant interposed a general demurrer to the complaint upon the ground that it fails to state facts sufficient to constitute a cause of action. Upon the trial of the demurrer the Special Term overruled it, holding that as sufficient facts were averred in the complaint to sustain an action in equity to redeem the property, the demurrer would not lie. From the interlocutory judgment overruling the demurrer this appeal is taken.

We have reached the conclusion that the decision of the learned court at Special Term is erroneous, and that the demurrer interposed by the defendant should have been sustained and judgment rendered for the defendant thereon.

It is evident that the action was brought as one purely at law to recover damages to property on the theory of a conversion. Indeed, counsel for respondents states in the opening of his brief, notwithstanding what the court has said as to the complaint that, “ This action was brought * * * to recover the-sum of $1,600, with interest from January 20, 1898, damages for a wrongful sale of personal- property by the defendant on which the defendant had a chattel mortgage.”

It is equally clear that the plaintiffs cannot maintain an action for conversion, for such an action must be founded upon legal title in the plaintiffs or their right to possession. The only interest the plaintiffs could have in the property in question is the equitable right of redemption. A mere equitable interest in personal property, where the legal title and actual possession are in another, is not sufficient to enable one to maintain trover. The plaintiffs had no legal title to the property at the time the sale was made. It is the law-in this-State that, after default in the payment of a mortgage debt, at law the title of the mortgagee to the mortgaged property becomes absolute, subject only to the right of the mortgagor. to redeem, which right is liable to be extinguished by a valid sale of the property by the mortgagee. (Casserly v. Witherbee, 119 N. Y. 522, 526 ; Bragelmam, v. Daue, 69 id. 74.) Under these authorities the plaintiffs have no remedy at law, but must go into a court of equity for a remedy. (Stoddard v. Denison, 38 How. Pr. 296.)

If.it might be possible to spell"out of the complaint in this action the averment of sufficient facts to sustain an action brought for redemption, which may be doubted, it does not follow that the demurrer is not well taken. The action, as already stated, is not brought, nor is the pleading framed, for any form of equitable relief. There is no demand for any form of equitable relief, nor prayer for relief generally; the demand is for the specific relief of money damages, and the pleading is framed wholly with reference to such relief. The Code of Civil Procedure prescribes, among other things which a complaint shall contain, that it must contain a demand of the judgment to which the plaintiff supposes himself entitled.” .(§ 481.) And it is further prescribed that' where there is no answer,, the judgment shall not be more favorable to the plaintiff than that demanded in the complaint. (§ 1207.) In Edson v. Girvan (29 Hun, 422) the court held that the facts stated in the complaint were not sufficient to justify a judgment against the defendant demurring for the amount of the promissory note upon which the action was brought, but were doubtless sufficient to sustain an action for an accounting, yet the demurrer was sustained, the court saying: “By-the provisions of the Code the relief could not be more favorable than this (a money judgment for a specific amount was demanded in the complaint) to the plaintiffs, unless an answer in the case should be served. (Code of Civil Procedure, § 1207.) And as this defendant did not answer, but served a demurrer, this section of the Code is directly applicable to the disposition of the" appeal.” It is true that the failure of the plaintiff to demand the precise relief to which he is entitled is not a ground for demurrer, but in view of the requirements of the Code provision the demand may properly be considered by the court in determining the nature of the action set forth in the complaint, whether it is an action at law or in equity; whether the parties would be entitled to a trial by jury or by the court.” (Swart v. Boughton, 35 Hun, 281.) It is also there held that “ Where all of the allegations of the complaint are made for the purpose of procuring equitable relief, and. where equitable relief alone is asked for, the complaint cannot be sustained for legal redress where no answer has been interposed.” (Kelly v. Downing, 42 N. Y. 71.) We reach the conclusion that the converse of this proposition is also true, and is the law to be applied here—: where only legal redress is demanded and no answer is interposed, the complaint cannot be sustained for equitable relief.

We have examined the cases cited by respondent, in which it is held that the complaint must be sustained if the facts as alleged entitle the plaintiff to any relief, no matter whether his prayer is addressed to the legal or equitable jurisdiction of the court; . and when the facts stated in the complaint entitle the plaintiff to relief in equity a demurrer will not lie, because he has not asked for it in the form in which he is entitled to it. In each of the cases cited under the first branch of the proposition there was an answer interposed, and in those cited under the second branch some form of equitable relief has been asked for, or the pleading was framed with a view to such relief, showing that the action was addressed to the equity jurisdiction. The cases are, therefore, clearly distinguishable from the case at bar.

These considerations lead us to the conclusion that the judgment appealed from should be reversed,, with costs, and the demurrer sustained, with leave to plaintiff to serve an amended complaint within twenty days upon payment of costs in this court and in the court below.

Van Brunt, P. J., Patterson, McLaughlin and Laughlin, Jj., concurred.

Judgment reversed, with costs, and demurrer sustained, with costs, with leave to plaintiff to amend on payment of costs in this court and in the court below.  