
    Burdick vs. McVanner.
    Where a chattel mortgage contained a provision that upon default of payment of the mortgage debt at the time agreed on, the mortgagee might sell the property at auction or private sale, and pay the debt and expenses out of the avails; held the mortgagee’s title became absolute at law upon default in payment without any sale being made.
    
    Error from the Oswego common pleas, to review a judgment of that court affirming a judgment rendered before a justice of the peace. The action in the justice’s court was trover for a cow brought by McYanner against Burdick, to which the defendant pleaded not guilty. The cause was tried by a jury. On the trial the defendant admitted the taking of the cow and that her value was $18. He then gave in evidence a chattel mortgage of the cow executed by the plaintiff to one John Parker, dated June Gth, 1843. It recited that the mortgagor owed Par-leer S3, to secure the payment of which he sold, transferred and delivered the coxv to the mortgagee: provided that if he, the mortgagor, should pay the S3 and interest on or before the 1st day of July, 1843, the transfer should be void; but in case of non-payment at that time the mortgagee Avas to have full poAver to take possession of the coav and sell her, and to pay the debt out of the proceeds. If the mortgagee should at any time deem himself insecure, he Avas authorized to take and sell the animal' at auction or private sale, and pay the debt and expenses out of the proceeds.
    Parker on'the 8th November folloAving assigned the mortgage to the defendant. The taking Avas subsequent to the assignment, and the suit was commenced at a still later day in November, 1843.
    It Avas then admitted that shortly after the defendant had taken the coav into his possession and before the commencement of the suit, the plaintiff tendered to the defendant the sum secured by the' mortgage, Avith interest and costs, and demanded the coav, but the defendant refused to give her up. The jury gave a verdict for the plaintiff upon Avhich the justice rendered judgment. The" defendant brought error to this court upon the judgment of affirmance.
    
      L. Johnson, for the plaintiff
    in error, cited 8 John. 96; 7 Cowen, 290; 9 Wend. 80; 11 id. 106; 12 id. 62; 23 id. 667; 1 Hill, 473.
    
      A. G. Hull, for the defendant
    in error, maintained that where there Avas, as in this case, a provision in a mortgage of personal property for a sale and satisfaction of the debt from the proceeds, the mortgaged property Avas liable to be redeemed at any time before such sale had taken place.
   By the Court, Beardsley, J.

By the mortgage to Parker, and the failure to pay according to its terms, the plaintiff lost all legal right to the cow, an absolute title to her, at Law, being vested in the mortgagee. (Fuller v. Acker, 1 Hill, 475; Smith v. Acker, 23 Wend. 667; Patchin v. Pierce, 12 id. 62; Case v. Boughton. 11 id. 109; Langdon v. Buel, 9 id. 83.) The assignment transferee! Parker’s title, which was then complete, to the defendant, who thereby became absolute owner, and as such might at any time take the cow from the possession of the plaintiff, whose only rights were those of a naked bailee.

The action was trover, which cannot be maintained without proving property, general or special, in the plaintiff. (1 Chit. Pl. 170, 7th Am. ed.) But as between these parties this plaintiff had neither. At law he had no title whatever against the defendant, and could only redeem in equity, a right which in this ease, owing to the small value of the property, could not be enforced in the court of chancery. But this circumstance cannot change the construction of the mortgage, nor give to the plaintiff a right or a remedy which he would not have if the property was of greater value.

This mortgage expressly authorized the mortgagee to sell the mortgaged property and thus satisfy the debt due to him; but it did not require him to do so or forfeit his rights tinder the mort gage. A power to sell like this is often found in chattel mort gages, but it has never been supposed to extend the time of payment specified in the mortgage, nor under any circumstan ces to reinvest the mortgagor with title to the property.

The judgments were erroneous.

Judgments reversed.  