#### John H. Nichols et al., Plaintiffs in Error, *vs.*Burnam Webster, Defendant in Error.

'iThe mortgagee of 'Chattels, after the mortgage falls due, is invested with the entire right in the chattels, and may reduce them to possession. He is hot bound to make a sale in order to perfect his claim.

íf, in such a case t-he mortgagor brings an act-ion of trespass as based upon the act oí the mortgagee, in reducing the goods to possession, it will not be maintained. All the right which a mortgagor has in chattels, is the equity of redemption. In an action of trespass by the mortgagor, against the mortgagee, for entering upon the mortgagor’s premises, and taking and carrying away the mortgaged chattels, the mortgagee may-, under the plea of the general issue, give the chattel mortgage in evidence in,his defence; and if the money thereby secured, is past due at the time of the taking the goods, it will be a perfect defence to the action.

'Where on the trial, the Judge under the' pleadings -above mentioned, refused to admit the mortgage in evidence in justification of the alleged trespass, it was error, which under an 'exception taken, will reverse the judgment.

Error to the Racine Circuit Court.

This was an action of trespass, brought by the defendant in error against -the plaintiffs in error, for taking certain goods and chattels.

' The goods and chattels, for the recovery of the value of which the action was brought, had been mortgaged by the defendant in error to the plaintiffs in error; and at the ^expiration of the time fixed for the payment of the sufn secured by the mortgage, the plaintiffs in error, without the consent of the defendant in error, took the goods and chattels mortgaged into their personal possession, and upon *204this state of the case, the action was brought against the plaintiffs in error.

The plaintiffs in error pleaded to the declaration the gen eral issue.

On the trial of the cause, at the circuit, the plaintiffs in error offered in evidence the mortgage held by them'upon the goods and chattels in question, to which an objection was raised by the defendant in error. The presiding Judge sustained the objection and the evidence was rejee-. ■Jed upon the ground that by the stipulation of the mortgage, the mortgagee should pay over to the mortgagor, •the plaintiff below, the proceeds arising upon the sale of the mortgaged property, after paying the mortgage debt and the costs of sale.

It was also objected by the plaintiff below, on the trial, that the defendants below could not, under the plea of the general issue, introduce evidence of *their*claim *of title to*the property; but this ruling had in view the fact before ¡stated, that the plaintiff below had a residuary interest in the mortgaged property, notwithstanding the forfeiture by the expiration of the mortgage.

The plaintiffs in error excepted to the determination and ruling of the judge, in both the particulars before mentioned, and the cause came to this Court principally upon those exceptions. The jury, under the instruction of the judge, found a verdict for the plaintiff below.

Lovell, for Plaintiffs in Error,

*Ckatjidd*& *A. D. Smith,*for Defendant in Error.

On the part of the plaintiffs in error it was insisted that the interest of the mortgagees, the plaintiffs in error, became absolute in the mortgaged property, and forfeited to them *205¡on the mortgage falling due; and to this point cited 8 *Johnson’s Rep.,*96 ; 7 *Cowell’s Rep.,*290; 9 *Wendell’s Rep.,*80; 6 *Shipley’s Rep.,*356; 12 *Wendell’s Rep.-,*61; I *Hill’s Rep.,*473; 2 *JDenio’s Rep.,*170; 3 *do.,*33; 9 *Wendell,*258; 2 *Wheeler’s Chancery Digest, 238.*

It was also insisted, on the same side, that the plea of the general issue was an appropriate plea where the property of the thing in dispute wá's in the defendant; and to that point cited 1 *Chitty's Pleading,*491 $ 292 *afid*293; 2 *Saunders’ Pleading and Evidence,*856; 2 *Greenleaf,*§ 625.

And that the party could show property in himself hnder that plea, he cited 2 *Phillip’s Evidence,*192.

On the part of the defendant in error it was claimed that, admitting the property mortgaged to have become absolute in the mortgagee, yet the absolute claim of the mortgagee could not be shown under the plea of general issue.

That á party having the possession of personal property, is *prima facie*the owner; and that the assertion of a claim tipon such property by a mortgagee to whom the property has become forfeited; cannot be shown under the generál issue; And to this point cited 3 *Chitty’s Practice,*728;- *Jthchbold’s Nisi Prius,*363; 2 *Carrington*& *Payne’s Rep.,*232; 25 *English Com. Law Reports,*372; 2 *Cdmp-belfs Nisi Priils Rep.,*378 *and*500; *Saiinder’S Pleadings and Evidence,*856; *Graham’s Practice, 2d Edition,*236';' 1 *Caine’s Rep.,*253 ; 11 *Johnson’s Rep.,*32; 7 *Cowen’s ■Rep.,*35; 10 *Wendell’s Rep.,*110.

That the first count of the declaration was in trespass far-breaking and entering the plaintiff’s door; and the 'second, *quare clausum fregit*with an allegation of taking *hd. carrying away the goods in question, &c. That xri order to justify an entry into the store of the plaintiff be-*206.Sow, it was necessary to plead specially a justification,, and that such justification could n,ot be given in evidence under the general issue; and to this point cited 6 *John-, son's Rep.,*5,.

*By the Court.*

Whiton, J.,

The question is this case-arises upon my decision in ruling out the chattel, mort-. gage of the goods, alleged to have been taken by the-plaintiffs in error, and for the taking of which the suit is. brought. The plea was the general issue, and when the mortgage was offered in evidence by the plaintiffs-, in error, the defendants below, I was of opinion that the-plaintiff below, the mortgagor, had a legal interest re-> maining in the gooda.mortgaged, after a breach of the condition, according to the stipulation contained in the-mortgage, that Nichols the mortgagee, should,pay over *to*Webster, the mortgagor, the proceeds arising from, the sale of the mortgaged goods, after paying the mortgage debts, expenses of sale, &c., and consequently re-, jected the evidence. But I am now of the opinion that the mortgagee was not obliged to foreclose the mortgage by a sale of the goods, and that his right to,, them was not at all affected by the clause of thq mortgage in ques-. tion. It follows, then, that when the condition of the mortgage was broken by the neglect of Webster to pay • the money at the time. stipulated, the goods become the property of Nichols, the mortgagee; Webster,- the mort-, g'agor, having no interest in them, except an equity of re-, demption. The cases cited by the counsel for the plaintiffs in error clearly maintain this position, of the correct-. ness of which there was indeed no doubt,, if the mort-. gage was not affected by the clause ab.ove alluded.to,, Ij, is clear that in actions of trespass, the defendant may,*207show, under-the plea of, the general issue, that he .is the. owner of the property: 2 *Greenleqf’s My.,*625. It follows,, then, that the mortgage in question, (showing, as it did,,, that the condition had .been broken when the goods were taken, and consequently that the mortgagee, the defend--., §nt below, wás the absolute owner in law of the proper-, ty), should have been received, and read in evidence to, the jury.

It was rejected, and for that reaspn the judgment,-vyhich was rendered against the defendant must be re-. Versed.

Judgment of the Cispuit Court rever.sed;swith costs.