Pierce v. Stevens
Supreme Judicial Court of Maine
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.
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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. The writ is dated 15th of April, 1847. The mortgage bill of sale, 28th of July, 1846. The year had not expired, during…
1Opinion of the Court
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 *185mortgage, and may be proved by parol. A plaintiff having no right to the possession, cannot maintain replevin.
Exceptions sustained.
2Cited by1 opinion
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