Prout v. Root
Massachusetts Supreme Judicial Court
Tort against the sheriff of the county of Berkshire for the official misconduct of Horace S. Streeter, one of his deputies, in converting to his own use a span of horses, alleged to be the property of the plaintiff by virtue of a mortgage to him from one C. I. Ray. The answer set up a special property in Streeter by virtue of an attachment upon a writ in an action in which Richard Prout was defendant.
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Tort against the sheriff of the county of Berkshire for the official misconduct of Horace S. Streeter, one of his deputies, in converting to his own use a span of horses, alleged to be the property of the plaintiff by virtue of a mortgage to him from one C. I. Ray. The answer set up a special property in Streeter by virtue of an attachment upon a writ in an action in which Richard Prout was defendant. Trial in the Superior Court, before Allen, J., who allowed a bill of exceptions in substance as follows: The plaintiff testified that he sold the horses to Ray on December 30, 1871, and took his…
1Opinion of the CourtColt, J.
A mortgage of personal property transfers the general property, and, in the absence of any agreement to the contrary, the immediate right of possession. The title is subject to a defeasance; but unless it has been divested by a performance of the condition, or by the exercise of the mortgagor’s right to redeem, the mortgagee can alone maintain an action against a stranger for its conversion. It differs in this respect from a pledge, where only a special property passes and the general ownership remains in the pledgor. At law, and without statute intervention, the interest of the mortgagor is…
2Cases cited1 opinion
- Blanchard v. ColburnMassachusetts Supreme Judicial Court · 1820
3Cited by12 opinions
- Cowley v. McLaughlinMassachusetts Supreme Judicial Court · 1886
- Dix v. SmithSupreme Court of Oklahoma · 1899
- Reimers v. Merrick CountyNebraska Supreme Court · 1908
- Aldrich v. BlakeMassachusetts Supreme Judicial Court · 1883
- Bailey v. WilloughbySupreme Court of Oklahoma · 1912
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