SUPREME COURT.

#### James C. Halstead, respondent, agt. Jacob Swartz, appellant.

*General*Term, *Fourth Department,*

October, 1873.

When, default is made in the payment of the debt which a chattel mortgage is given to secure, the *title*to the mortgaged property becomes, eo *instanti,*absolute in the mortgagee.

The only right that remains to the mortgagor, after such default, is that of redemption; and this right may be barred by a sale of the property at public auction or private sale, without notice.

If the debt is payable in *installments*and default is made in the payment of one installment only, the title of the mortgagee is as perfect as if default was made in payment of the whole debt.

To entitle the mortgagor to *redeem*under such a mortgage he must pay or tender the whole debt. The whole title vests on default, and the whole title must be divested by the redemption; and that can only be done on payment of the whole debt.

In an action of *trailer*the plaintiff is entitled to recover the value of the property, as of the time of the sale made by the mortgagee, and for the loss of the use prior thereto; but he is not entitled to the value of the use subsequently.

*Before*Mullin, *P. J.,*Talcott *and*E. D. Smith, *JJ.*

Oh the 10th of May, 1869, the appellant sold to the-respondent the canal-boat, “Caddie Roberts,” for $1,000, payable as follows: One hundred dollars on the 1st day of September, 1869; $100 on the 1st day of October, 1869; $100 on the first of November and $100 on the first of December of the same year, and the residue in six monthly payments, commencing on the 1st day of June, 1870.

Notes were given for these sums, payable as above stated ; and to secure these notes the respondent gave to the appellant *290a mortgage on said canal-boat and other property, conditioned that if said respondent should pay said notes as they became due the mortgage should be of no effect; but that in case of the non-payment of said notes at the time or times above mentioned, then said appellant should have power to seize and sell said boat, and out of the avails, after paying the expenses of the sale and the keeping of said property, to pay said debt. Said mortgage was duly filed in the office of the auditor of the canal department.

The note of $100, payable on the 4th day of September, 1869, was not paid when it became due, but the respondent made default in the payment thereof.

On the eighteenth day of the same month the appellant seized said boat by virtue of said mortgage, and in the forenoon of the same day directed the sale of said boat under the mortgage, and the same was sold at private sale to one Frank for $600. No money was paid or papers passed; and on the same or on the next day Frank relinquished or resold his bid on the boat to the appellant on condition that he would “ treat the boys,” which was done.

The sale under the mortgage was made without notice to the respondent and without public notice. The referee found that said sale was fraudulent and in derogation of the rights of the respondent.

On the 20th day of September, 1869, the respondent tendered to the appellant $104 and demanded possession of said boat, which tender and demand were refused by the •appellant.

The respondent was permitted by the referee, notwithstanding the objection of appellant’s counsel, to prove the value of the use of said boat for two months and twenty days in 1869, and for eight months in 1870.

The referee charged the respondent for such sums, and $1,500 for the value of the boat, amounting in all to the sum of $2,000. From this sum he deducted the amount due on the mortgage and interest, amounting to the sum of $1,244.42, *291and for a certified copy of the chattel mortgage one dollar and twenty-five cents, making in all $1,245.67; and he ordered judgment for the balance of $754.33, besides costs, and from this judgment the appeal is brought.

I. N. Messenger, *attorney for appellant.*

Fuller, Vann & Brooks, *attorneys for respondent.*

*By the Court,*Mullin, *P. J.*

On default being made in the payment of the debt which a chattel mortgage is given to secure, the mortgagee’s title to the mortgaged property becomes, *eo mstanti,*absolute at law *(Falman*agt. *Smith,*39 *Barb.,*390; *Butler*agt. *Miller,*1 *N. Y.,*496; *Fay*agt. *Burnes,*12 *Barb.,*677; *Brown*agt. *Bement,*8 *J. R.,*96 ; *Patchin*agt. *Pierce,*12 *Wend.,*61). The only right that remains to the mortgagor, after default in payment, is that of redemption, and this right may be barred by a sale of the property at public auction or private sale, without notice *(Ballou*agt. Cunningham, 60 *Barb.,*425 ; *Chamberlain*agt. *Mortin,*48 *Barb.,*607).

The title of the mortgagee is as perfect when the default is in the payment of an installment of the debt, when it is payable in installments, as it is upon default in payment of the whole debt *(Robinson*agt. *Wilcox,*2 *N. Y. Legal Obs.,*160).

This result necessarily follows from the condition of the mortgage. The title cannot become vested in parcels; it becomes absolute at once or not at all.

To entitle the mortgagor to redeem under such a mortgage he must pay or tender the whole debt (4 *Kent,*162, 163, 164; *Polls*agt. *Lord Clinton,*12 *Ves.,*48-59 ; *Patchin*agt. *Pierce,*12 *W.,*61). In the case last cited the plaintiff sued in trespass for taking certain personal property which he had mortgaged to one Hickok to secure payment of fifty dollars by the twentieth October following its date. Partial payments were made, but the whole debt was not paid. The assignee of the mortgage seized the property, and the court *292held that the taking was lawful. Payment after the debt came due did not revest the property in the mortgagor.

The authorities cited do not hold in terms that the whole debt must be paid when an installment of the indebtedness only has become due; but they do hold that if there are several parties interested in the debt the whole debt must be paid or tendered, and that the mortgagor or other party cannot redeem on paying part only of the debt. Authority is not necessary, it seems to me, in support of a proposition resulting so manifestly from the very nature of the interest that the law confers on the mortgagee of chattels on breach of the condition.

The whole title vests and the whole title must be divested by the redemption, and that can only be done on payment of the whole debt.

It is immaterial therefore whether the sale by the mortgagee on the 18th September, 1869, was fraudulent or fair; the title to the boat remained in him, and the mortgagor has not redeemed.

Unless the tender of the $104 was sufficient, no reason is perceived why the sale in October, 1869, to Horley *&*Doran did not bar the plaintiff’s right to redeem. Ho fraud is pretended as to that sale, and the right to sell was as perfect then as in the September preceding. If, however, the sale to Horley *&*Doran had no other effect, it prevents a redemption, as it puts it out of defendant’s power to deliver the boat *(Stoddard*agt. Dennison, 38 *How.,*296-306).

The plaintiff did not attempt to redeem ; he treated the tender as revesting in him the title to the property; this it could not do; a decree of a court of equity only could revest the title. It is held, in *Kortright*agt. *Cady*(21 *N. Y.,*343), that payment or tender of the amount due on a real estate mortgage terminated its lien on the land, although not paid or tendered on the law day. But the title of the mortgagee of land does not become absolute on default of payment as it does in case of a chattel mortgage, and the case of *Patchin**293agt. *Pierce (supra)*holds that payment after the day does not discharge the lien.

In an action of trover the plaintiff is entitled to recover the value of the boat as of the time of that sale, and for the loss of the use prior thereto; but he is not entitled to' the value of the use for the season of 1870.

It was his duty to bring his action promptly. If he could wait a year, no reason is perceived why he might not wait two or three years and recover for the use of the boat a sum much greater than her value; as it is, the referee has, by his judgment, taken from the defendant his boat and given it to the plaintiff, without one penny of compensation, and brought him in debt more than $750.

The judgment must be reversed and new trial ordered before another referee, costs to abide the event.