
    Fairbanks and others v. Bloomfield and another.
    (Before Duer & Bosworth, J.J.)
    October 18.
    November 19, 1853.
    Whether an instrument in writing is or is not a valid mortgage is a question of law, and to enable the court to determine it when the action is founded upon the writing, either the whole instrument, or those provisions which are relied on as giving to it the character of a mortgage, must be set forth in the complaint.
    When the complaint averred that the defendants had seized and taken possession of a vessel, the value of which was sought to be recovered under an attachment issued under the laws of Connecticut, and did not show nor aver that the attachment was void;
    
      Held, that the refusal of the defendants to deliver the possession was justifiable upon the face of the complaint. Judgment for defendant upon demurrer to the complaint.
    .Appeal from an order at special term, overruling a demurrer to the complaint.
    The complaint is in the words that follow.
    The plaintiffs in this case complain against the defendants, and allege that they, the said plaintiffs, are co-partners, doing business under the firm of Fairbanks & Allison, in the city of Halifax, in the province of Hova Scotia. That one Gilmore Densmore M'Lellen, being the owner of a certain vessel or brigantine, called the Bloomfield, and being indebted to the said plaintiffs in the sum of eight hundred pounds, Hova Scotia currency, did, on the twenty-third day of May,- A.D. one thousand eight hundred and forty-eight, execute to the said plaintiffs a mortgage for the said sum of eight hundred pounds, Hova Scotia currency, upon the said brigantine Bloomfield; "that under and by virtue of the said mortgage, the said plaintiffs became entitled to the possession of the said brigantine Bloomfield on the twenty-third day of August, one thousand eight hundred and forty-eight, as by the said mortgage ready to be produced, as this court shall direct, will more fully appear.
    And the said plaintiffs allege that at the time they became entitled to the possession of the said brigantine aforesaid, the same had been seized and taken possession of, under process of attachment, issued at the suit of the said defendants, on the 25th day of July, one thousand eight hundred and forty-eight, under the laws of the State of Connecticut, at the suit of the said defendants against the said John Gilmore Densmore M'Lellen, and were then in the custody of John Stevenson, a constable of the town of Bridgeport, in the county of Fairfield, and state of Connecticut. That the said vessel was so seized and taken possession of by the direction and at the instance of the said defendants.
    And the said plaintiffs further allege that after they became entitled to the possession of the said vessel as aforesaid, they made a demand for the same of the said defendants; that the said defendants refused to deliver or authorize the said constable to deliver the said vessel to the said plaintiffs.
    Whereby the said plaintiffs allege that the said defendants unlawfully converted the said vessel to their own use, and they therefore claim that the said defendants are indebted to them, the said plaintiffs, in the sum of three thousand two hundred dollars, being the amount due to them upon the mortgage aforesaid ; and also in the sum of one thousand dollars, being the damage they have suffered from the loss of the possession of the said vessel; and they pray judgment accordingly.
    The demurrer was general, on the ground that the complaint did not state facts sufficient to constitute a cause of action.
    
      H. B. Cowles, for defendants.
    The demurrer is well taken, because
    I. The complaint does not state facts sufficient to constitute a cause of action. 1. It does not show that the plaintiffs had any valid title to, or property in the vessel in question. 2. It does not show the terms of the contract or agreement which is called a mortgage of the vessel. Whether the contract constitutes a mortgage or not is a question of law, to be pronounced by the court upon the facts. 3. It does not show when the moneys claimed under the contract were due or payable, or that by its terms the plaintiffs were entitled to the possession of the vessel, or that there had been a default in payment. 4. It does not show where the contract or agreement called a mortgage was made, or executed, or where it was to be performed. Hor that it was valid where made, or to be performed, or gave the plaintiffs any right to the possession of the vessel under it. Its construction may depend upon the lex loci conhractüs. 5. The complaint does show, that possession of the vessel was not taken by the plaintiffs when the so-called mortgage was executed, and that they did not claim to be entitled to the possession of it until long afterwards. 6. Ho fact or reason is stated in regard to the possession upon which the court can pronounce the so-called mortgage valid, or that the plaintiffs thereby acquired title to the vessel. 7. It appears by the complaint that before the plaintiffs claimed to be entitled to the possession of the vessel by virtue of the so-called mortgage, she had been seized and taken possession of by process of attachment, issued under the laws of Connecticut, at the suit of the defendants, against M‘Leland, and was then in custody of a constable, &c. Under these circumstances, the plaintiffs had no right or title to the vessel at all, and the attachment would hold her. (Swift v. Thompson, 9 Conn. Rep. 63 ; ib. 216.) She was in the custody of the law under process issued under the laws of a sister state, and no action will lie against the defendants on the grounds alleged in the complaint. (Jenner v. Joliffe, 6 John. Rep. 3; 9 ib. 381.) The equity of redemption at least might be properly taken on the attachment, at the time the vessel was taken, and she might be sold subject to the so-called mortgage of the plaintiffs. The defendants were not bound to deliver her to the plaintiffs, the more especially as it does not appear that there was any evidence of title exhibited by the plaintiffs to the defendants, or any ground of right or claim stated to them. 8. The complaint does not show that after the attachment was so issued, the plaintiff had power to supersede it, or order the vessel delivered to the plaintiffs. Or that the plaintiffs paid or offered to pay the costs incurred upon the seizure upon the attachment. The remedy of the plaintiffs, if they have any, is by replevin against the officers. 9. The complaint does not state the time or place when and where the alleged demand was made. 10. It does not show facts upon which an unlawful conversion can be predicated or adjudged. 11. The complaint attempts to make the plaintiffs’ conclusions of law and fact supersede the necessity of stating the facts constituting their cause of action.
    
      R. S. Emmet, for plaintiffs.
    I. The complaint is sufficient in form and substance. It shows a special property, with a right of possession of the brig Bloomfield in the plaintiff, and a tortious conversion by the defendants before suit brought.
    II. The possession of the defendants, and the officer under the attachment against the mortgagor, were subordinate to the plaintiffs’ right to take possession under his mortgage, when it became due. 1. A mortgagee, with right of possession, may maintain trover for the conversion of - a chattel. (Slack v. Littlefield, Harper, 298; Gordon v. Harper, 7 Term 9; Matteson v. Baucus, 1 Comst. 295; Reynolds v. Shuler, 5 Cow. 323; Stuart v. Taylor, 7 How. Prac. R. 251; Fenn v. Battleson, 8 Eng. L. &. E. R. 483.) 2. The possession of the officer under the direction of the defendants, was equivalent to possession by themselves, as regards these plaintiffs. (Libby v. Soule, 1 Shep. 310; Jenner v. Joliffe, 6 John. 9.) 3. A mortgagee may maintain trover for a conversion of a chattel by a. stranger, whilst it was in the possession of the mortgagor. (Suyder v. Hilt, 2 Dana, 204.)
    III. Even if the original taking had been lawful (which we do not admit) that would not justify the defendants’ wrongful conversion by refusing possession to the plaintiff on demand. (Murray v. Burling, 10 John. 172.)
    TV. Whether there are circumstances to justify the refusal, or whether the person making the demand had authority to do so, are questions of fact for a jury. (Dent v. Childs, 5 Stewart & Portm. 383.)
    V. It was not necessary to set forth the mortgage at length, nor the place of execution. The defendants might have procured an inspection of the mortgage by application to the court, under section 380 of Oode, or might have compelled the plaintiff to make the complaint more definite and certain, under section 160 of Code.
    The order of the Special Term, overruling the demurrer, should be affirmed.
   By the Court. Duer, J.

The demurrer to the complaint, we think, is well taken.

Whether the instrument, by virtue of which the plaintiffs aver that they became entitled to the possession of the vessel, is or is not a mortgage, is plainly a question of law, which it belongs to the court to determine; and to enable the court to, determine it, the complaint ought to have set forth, if not the whole instrument, at least those provisions which are relied on as giving to it the character of a mortgage; in other words, of an instrument vesting in the plaintiffs a legal right to the possession which they claimed. In calling the instrument a mortgage, the plaintiffs substitute their own opinion, or that of their counsel, for the judgment of the court. The safest course, under the Code, where the action is founded on an instrument in writing, is to annex a copy and refer to it as a part of the complaint.

The next objection is perhaps still more evidently fatal. The complaint admits that before the plaintiffs became entitled to the possession, the vessel had been seized and taken possession of under an attachment issued at the suit of the defendants under the laws of Connecticut, but does not show, nor even aver, that the attachment was irregular and void, either absolutely or as against the plaintiff; and, if not, the defendants were entirely justified in their refusal to comply with the demand of the plaintiffs that they would deliver to them the possession of the vessel, or authorize its delivery by the constable. Nor does it appear that they could have given any order to the constable which he would have been bound to obey. Primé facie, an order of the court from which the attachment issued was necessary to discharge it, and until it was discharged, it was the duty of the officer to retain the possession, which it doubtless enjoined him to keep.

It is true that the complaint concludes by averring that the defendants unlawfully converted the vessel to their own use, but as the averment is not warranted by the facts that precede it, it is wholly immaterial.

The complaint has throughout the usual defects of substituting conclusions of law for the facts, which ought" to be so clearly and fully stated as to enable the court to draw the proper conclusions—that is, to say whether they do, or do not, constitute a cause of action.

The order overruling the demurrer is reversed and the defendants are entitled to judgment, but the usual liberty to amend, upon payment of costs, is given to the plaintiffs.  