Gelhaar v. Ross

Tbe plaintiff-.claimed title to personal property under a mortgage. Upon -tbe trial parol proof of tbe contents of tbe mortgage was given, without objection on tbe part of tbe defendant. He cannot, therefore, now make an emotion wbicb should have been stated to tbe justice at that time. If it bad been taken on tbe trial, tbe objection could have been obviated, probably, by producing tbe original mortgage. Tbe rule is well settled, that such objections are of no avail unless made at the trial. On this account tbe motion for a non - suit was property denied.

There is no doubt that the interest of tbe mortgagor, before default .in tbe payment of tbe mortgage, may be levied on and sold by the', sheriff or constable. 1 Com. 295 ; 1 Kiernan, 501, and cases there cited. There is no evidence that such was tbe present case. On tbe contrary, tbe evidence shows that the money secured by tbe mortgage was due, and tbe plaintiff bad taken measures to foreclose tbe mortgage, and was in possession of tbe property, before tbe levy, of wbicb tbe officer bad notice. He was therefore legally in possession of tbe property, and tbe officer as well as tbe party, having full knowledge of these facts, became trespassers when they sold tbe property and delivered possession to third persons. They might have sold tbe interest of tbe mortgagor, but after default in tbe mortgage, and possession on tbe part of tbe mortgagee, and knowledge thereof by tbe parties, they could not legally go further.

There is also a more serious objection to tbe defendants’ appeal, viz., that tbe evidence was not sufficient to make out any justification. Both in tbe answer and tbe evidence, they attempt *119to justify on tbe ground that tbe goods-were sold under an execution. Tbe proof necessary to sustain suob a defence, when it appears that a stranger bas title and possession of tbe property, is not complete by merely producing an execution, but tbe defendant-must also prove tbe judgment under wbicb tbe execution was issued. High v. Wilson, 2 J. R. 46 ; Parker v. Walrod, 16 Wend. 517. No sucb evidence was offered, and tbe justification in this respect failed. Tbe plaintiff was entitled to recover any damages be sustained by having tbe property taken from bim.

Tbe defendants cannot complain that tbe justice erred, in adopting tbe lowest value as'tbe amount of tbe damages. If tbe plain tiff is satisfied, tbe defendants might to be also. ‡»

Judgment affirmed.