#### Dewitt C. Haskins, plaintiff, *vs.*John Kelly *et al.*defendants.

1. A requisition in proceedings of claim and delivery to recover possession of goods, in an action brought for the purpose, against one who purchased them at a wrongful sale, will justify the sheriff in seizing them, although the defendant acted as a mere agent in the purchase, if the papers are served and the seizure made while the goods are actually in his possession.

2. Any one whose goods are taken by the sheriff, in such proceedings against another person, can maintain an action against the sheriff for damages, notwithstanding his having given the sheriff notice of his claim, under section 216 of the Code of Procedure, if he subsequently withdrew it to enable the sheriff to deliver the goods.

3. A transfer of a chattel mortgage merely by way of collateral security for the payment of a debt is a pledge, not a mortgage thereof; and need not be recorded.

*4.*Notwithstanding such pledge, the pledgor may afterwards assign the mortgage to a third person, who may enforce it by a sale of the goods, subject however to the lien of the pledgee.

5. The lien of a pledge is destroyed by a tender of the amount due.

6. Where the mortgagor of chattels borrows money to buy in the mortgage, and procures an assignment of it to the lender, as security for repayment of the *161loan, the mortgage becomes in the hands of the latter a mere pledge for the loan, and is discharged by a tender thereof.

7. Where the holder of a chattel mortgage first pledged it for the payment of a certain sum, and subsequently assigned it;

*Held*that in an action by the assignee against third persons for converting the goods mortgaged, evidence of such pledge was admissible in regard to damages.

(Before Robertson, White and Barbour, JJ.)

Heard June 11, 1863;

decided October 3, 1863,

This action was in the nature of trover, to recover from the sheriff of the city and county of Hew York, (John Kelly) and one of his general deputies, (Thomas Murphy,) the value of several printing presses and materials, taken and detained by them. The defendants, answering separately, justified taking the goods by virtue of a requisition for their delivery issued to the sheriff in proceedings of claim and delivery under the Code of Procedure, in an action previously brought ■by William M. Hays against John Miller, while the latter was (alleged to have been) in possession of the property. For a further defense the defendants set up that at the time of the commencement of the present action one John J. Smith, and not the plaintiff, was the owner of the property, and entitled to its possession.

The cause was tried before Mr. Justice White and a jury, in J une 1862, during three days. The facts, some of which are more minutely stated in the opinion of the court, were briefly as follows : The plaintiff, Haskins, claimed title under a chattel mortgage, and its foreclosure. Such mortgage was given by Hayes, formerly the owner of the property, to one Thurber, to secure $8795, and was dated in July, 1860. Hayes procured a friend of his (Vincent) to advance him money to obtain an assignment of the mortgage from Thurber to secure Vincent’s advances. Hayes gave him a bill of sale of the property. When the assignment of the mortgage was obtained from Thurber it was made to Vincent, who agreed to allow Hayes to repay him in installments. Such assignment from Thurber to Vincent was recorded, as well as the mortgage itself. Subsequently Hayes borrowed of John J. Smith $500 *162to pay upon the mortgage, and secured the repayment of such loan by his note and an assignment from Vincent of the mortgage to Smith, as collateral security. Vincent assigned the mortgage to the present plaintiff. His former assignment of it to Smith was never' recorded. The amount remaining due to Vincent under the mortgage, at the time of the assignment to the plaintiff, was $1035. The plaintiff employed a constable (West) to foreclose the mortgage. Hayes, the mortgagor, tendered to West the amount due, with $20 additional to cover expenses, which West refused to receive ; claiming a much larger sum, including also a charge of $155 for services in foreclosing, and $17 expenses. Accordingly West proceeded with the sale ; and the property was bid in by John Miller, who acted as agent for the plaintiff. Miller bid in his own name, and immediately proceeded to make an assignment of the property to the plaintiff. Meanwhile Hayes, whose tender had been refused, prepared the papers necessary for an action to recover the property from whomsoever should be the purchaser, and immediately after the sale, and before any change of possession, inserted the name of Miller as defendant therein, and Murphy, one of the defendants in the present action, took possession of the goods under the requisition, and subsequently served the papers on Miller.

Haskins having received his assignment from Miller, in order to prevent the delivery of the goods to Hayes, served on the sheriff a notice and affidavit, under section 216 of the Code of Procedure, that he claimed to be the owner. Subsequently he served on the sheriff the following notice :

“ For the purposes of this action, and to enable you to der liver the property to the defendant, I hereby waive and withdraw the claim I made to the property in question under section'216 of the Code, and also withdraw the affidavit presented to you in this case ; but. this is not to prejudice my title to the property, as between me and the defendant, or any other person. Ton will please deliver the property to the defendant the same as if such affidavit and claim were never delivered by me to you in this action.”

*163Some weeks after the sale by the plaintiff, Smith caused the property, or part of it, to be sold under his claim upon the mortgage, and bid it in himself. The plaintiff then commenced the present action to recover damages from the sheriff and his deputy for taking the goods in the proceedings against Miller. The jury found a verdict for the defendants ; and the cause now came before the court on the plaintiff’s exceptions.

*E. F.*Bullard, for the plaintiff.

I. Ah- sales by Smith, after his mortgage was paid, were void, and the plaintiff was entitled to recover for the property sold by Smith, even if his $500 interest took precedence of the plaintiff’s. (3 *Denio,*33. 13 *Barb.*631.)

II. The defendant did not act under Smith’s assignment, in taking or holding the property. He was in no manner connected with-Smith's title. The court, therefore, erred in admitting the evidence as to the assignment to Smith, and in refusing to charge as requested, that if the jury found that the assignment in question was made to the plaintiff without notice of the assignment to Smith being given to him or his agents, then the plaintiff’s rights are prior to Smith’s, and are not affected thereby.

III. Even if the defendant could set up Smith’s title, the court erred in charging *“*that Haskins took subject to the rights and equity of Smith, whether they were disclosed to Hasldns or not, at the time of the transfer to him.” 1. It is conceded that the plaintiff took subject to all *latent*equities, which Hayes, the mortgagor, had against the mortgagee, and the plaintiff was bound to inquire of him as to them. But that rule has no application to equities in favor of assignees (unless we claim through them) or third parties, who do not record or give proper notice of their assignment. (William*son*v. *Brown,*15 *N. Y. Rep.*354.) If so, no man could take an assignment without inquiring of every man on the globe if he held an assignment of the mortgage before he could safely purchase of the mortgagee. 2. The assignment to Smith was, in effect, a mortgage for $500. *(Thompson*v. *164
      *Blanchard,*4 *N. Y. Rep.*303.) The assignment was therefore void, because it was not recorded as a chattel mortgage. *(Id.)*The doctrine laid down in *Story Fq.*§ 409 ; *Corning*v. *Murray,*(3 *Barb.*652,) and that class of cases, is not overruled by *Bush*v. *Lathrop,*(22 *N. Y. Rep.*535.) The case of *Burr*v. *King, (Court of Appeals, June Term,*1852, *not reported,)*is directly in point. In that case Pettit held two mortgages upon the same premises, and assigned the younger to King, under such statements as would estop him from setting up the prior mortgage against King. Pettit afterwards assigned the oldest mortgage to Burr. The Court of Appeals held that the latter was not bound by the latent equities of King against Pettit, the plaintiff’s assignor.

IY. The court erred in admitting evidence of the tender by Hayes, and in charging that it defeated the plaintiff’s lien, and that he had no right to foreclose it. The court should have charged that the tender had no effect. The case of *Kortright*v. *Cady,*(21 *N. Y. Rep.*343,) was a case of real estate, and can have no application to chattel mortgages. A mortgage of chattels differs from one of real estate. It is a defeasible sale. *(Butler*v. *Miller,*1 *N. Y. Rep.*428. *Mattison*v. *Baucus,*1 *N. Y. Rep.*295. *Ferguson*v. *Lee,*9 *Wend.*258. *Brown*v. *Bement,*8 *John.*96. *Patchin*v. *Pierce,*12 *Wend.*61. 2 *Denio,*170.)

• Y. The sheriff, in this case, does not set up in his answer any claim for equitable relief, or ask to redeem. He places himself upon his replevin papers, and asserts that the *title*at *law*is in Hayes, the mortgagor. But even if the defendant had undertaken to redeem, by asking for affirmative relief in this action, he was too late, as the mortgage was already foreclosed upon notice, and the equity of redemption cut off before this action was commenced. Hayes should have commenced an action to redeem, and stayed the foreclosure by injunction, and asked for an account to settle the 'amount unpaid.

YI. The action in favor of Hayes was not commenced until, after the sheriff was informed that Miller was a mere agent, and that the plaintiff was the party. The court therefore *165erred in charging that the action was commenced by a *bona fide*attempt to serve the papers. (17 *How. Pr.*477.) The court properly charged, that the plaintiff has a right to sustain this action, if he is the owner of the property. Section 216 of the Code does not prevent the plaintiff from bringing this action. It provides a remedy by claim, instead of *action,*but the party may waive the claim and bring the action. *(King*v. *Orser,*4 *Duer,*431.)

*A. J. Vanderpoel,*for the defendants.

I. The court submitted to the jury the question as to the amount due upon the mortgage, and as to the deficiency of the amount tendered. These facts having been determined in favor of the defendant, it follows, as a conclusion of law, that the lien of the mortgage upon the property was discharged, and the power of sale was gone. The creditor could from that time look only to the personal security of his debtor. (6 *Wend.*693, 608. *Kortright*v. *Cady,*21 *N. Y. Rep.*348, *and cases cited. La Motte*v. *Archer,*4 *E. D. Smith,*46. *McLean*v. *Walker,*10 *John.*471. *Hunter*v. *Le Conte,*6 *Cowen,*728. *Pattison*v. *Hull,*9 *id.*747. *Hinman*v. *Judson,*13 *Barb.*629. *Charter v.Stevens,*3 *Denio,*33. *Parish*v. *Wheeler,*22 *N. Y. Rep.*494. *Mason*v. *Sudam,*2 *John. Ch.*172. *Pratt*v. *Stiles,*17 *How. Pr.*211.)

II. It was the right and duty of the sheriff to take the property under the claim and delivery papers. In this respect the case was fairly submitted to the jury. 1. No action would lie by the plaintiff against the sheriff, except under section 216 of the Code. This does not enable the plaintiff to maintain a suit, unless the sheriff delivers the property to the plaintiff in the action. 2. If the plaintiff could have maintained an action, he abandoned and lost it by his withdrawal on the 15th of July, and before this suit was commenced. 3. There is no provision which authorizes or justifies the sheriff in giving the property to the third party, when he interposes a claim under section 216 of the Code. He need not deliver the property to the plaintiff in the action, when such a claim is inter*166posed by a third party, but the law does not allow a defendant then to have his property taken from him at the suit of a plaintiff, and then delivered to a stranger to the action, without security. The defendant can not indemnify against the claim of the third party, and yet the property can, on the plaintiff’s theory, be taken from him and given to a third person, who does not give any security. *(Edgerton*v. *Ross,*6 *Abb. Pr.*189. *Dearman*v. *Blackburn,*1 *Sneed, Tenn.*390. *Watkins*v. *Page,*2 *Wis.*92.)

III. The assignment of the mortgage to the plaintiff was taken with full notice of the previous assignment to Smith.

IY. Hone of the exceptions to the admissibility of the evidence were well taken.

By the Court, Robertson, J.

The plaintiff claims the property in controversy, by virtue of a sale thereof under an instrument of hypothecation of it executed by the original owner to a Mr. Thurber, held by the plaintiff as assignee thereof. At such sale, an agent of the plaintiff (Miller) bought such property and took possession of it for him, subsequently transferred it to him, and informed him he had done so. The original owner, after such sale, commenced an action and proceedings of claim and delivery for it, against Miller (the agent) ; out of whose manual possession the defendants, as sheriff and deputy, took it, by virtue of the duly verified written claim in such action, which was placed in their hands for service. Before the service of the summons in such action, and seizure of the property under such claim, the officer who served them was informed that Miller claimed the property as the plaintiff’s agent only. It was contended on the trial that such information prevented the defendants from justifying, under the claim in such action, but how was not clearly specified. It is now, however, urged that the action was not commenced until the actual service of the papers on Miller, the agent, and that an instruction by the court to the jury that a bona fide attempt to serve the papers was equivalent to a ser- ' vice for the purpose of commencing the action was erroneous.

*167Two things would he necessary to make such charge erroneous. *First.*That the priority of the service of the papers to the giving of information of the plaintiff’s claim should be material. *Secondly.*That an actual possession by one wrongdoer for the benefit of another, required a suit for the property to be brought against the latter, in order to justify a seizure of it in the hands of the former under a claim.

There was no evidence that the property ever left the actual possession of Miller, until the service of the papers on him. The mere private recognition by him of a right in the present plaintiff, even if made after the sale, but not known to the defendants at the time of such service, clearly could not deprive them, as legal owners, of the right of taking the goods out of the manual possession of the actual possessor in an action against him. Such a mere constructive change of possession might warrant an action against the principal, and the taking possession away from his agent, (§ 209) ; but could not defeat the right of proceeding against the primary wrongdoer while still in possession. The inquiry, therefore, became immaterial, whether the action was begun before the service of the papers or not; consequently it is immaterial whether section 99 of the Code is confined to the commencement of actions to save the statute of limitations, or whether, under sections 135 and 209, jurisdiction over the property (at least if in Miller’s possession,) was acquired by delivery of the papers to the defendant to be served.

The fifth request of the plaintiff to the court, to charge that the defendants took the property wrongfully as against him, unless they took it out of Miller’s, possession, involves substantially the same question. But there was no evidence of any transfer of actual possession to the plaintiff by Miller, before the service of the papers on him, and the seizure of the goods. The sale of the goods, and their seizure by virtue of the claim and delivery papers, took place within a quarter of an hour of each other. Those papers being already prepared with a blank tor the name of the defendant in that action, and needing only its insertion to complete them, were forthwith after *168such sale put in the present defendant’s hands, and could easily have been served within that time. Miller did not execute a transfer to the plaintiff until half an hour after his own purchase. The person (Titterton) who, in Miller’s presence, was directed to take’possession of the goods did not do so. He merely, as Miller’s agent, examined them. There was in fact no evidence to go to the jury of any change of even constructive possession of the goods from Miller to the plaintiff, before the service of the papers on the former, in the action against him.

The withdrawal' by the present plaintiff, of the claim which he interposed in1 the action against Miller, so as to permit a delivery of this property to him, probably did not operate as a waiver of any claim under the 216th section of the Code. That section seems to have been intended simply for the protection of the sheriff, in case he should deliver property seized ■in-'an action of *claim and*delivery to a plaintiff therein, and not in order to sanction its delivery.to a defendant. Upon a claim by a third party, a failure by the plaintiff to give a proper indemnity, does not entitle such sheriff to *deliver*the property seized to such third party. He can only permit the original defendants, from whose possession the property was taken, *to resume it,*by relinquishing it himself. The previous rule of the common law as amended by statute, justified an officer in delivering property to a plaintiff in an action of replevin after a sheriff’s jury found it to be his. *(Shipman*v. *Clark,*4 *Denio,*446. *King*v. *Orser,*4 *Duer,*231. *Edgerton*v. *Ross,*6 *Abb.*189.) The section in question dispenses with the necessity of any such trial. There being no evidence in this case, as to what has become of the property, it must be presumed to have remained in the possession of the defendants ever since its seizure; which would be an unreasonable time for the sheriff to wait for indemnity from the plaintiff. The court was therefore right in charging that the present plaintiff could bring the action if he had a right to the property.

The right of Mr. J. S; Smith to the possession of the goods in question, in October, 1861, when this action was begun, if *169material, requires a fuller examination of the plaintiff's rights under the instrument of hypothecation executed by Hayes to Thurber, as well as its validity as security for any sum, and if valid the amount.

That instrument was executed in July, 1860, to secure the payment by Hayes to Thurber of a certain sum. Before the 29th of October following, a judgment against Thurber for an amount sufficient to extinguish the debt secured by such instrument, was bought for a much smaller sum, by *Hayes*or *Vincent.*The latter undoubtedly advanced the money on the 26th of October, 1860, to pay for it, but he testified that he first bought it and afterwards agreed to let Hayes have it for the same price he paid for it. The latter swore he made the purchase; and another witness (H. S. Smith,) testified he negotiated it for him. Hayes executed a bill of sale of the property to Vincent on the day he borrowed the purchase money for the judgment, for a consideration exceeding it, but the amount of which was made up by legal expenses and small items. This was agreed to be security for the loan, until Thurber should assign to Vincent the instrument executed to him. The amount was to be repaid by weekly installments.

These facts establish the advance by Vincent of the purchase money for the Thurber judgment; his cotemporary agreement that in case he procured a transfer to himself, of the instrument executed by Hayes to Thurber, he would relinquish to Hayes all his interest in such instrument, upon being repaid the amount due him; while until such instrument was assigned to him, he was to hold as security for the repayment of his loan, the bill of sale of the 26th of October. The result of the whole transaction would then be, that the agreement by Vincent to assign to Hayes the debt due by, him to Thurber, as well as the instrument of hypothecation given to secure it, when carried out, would extinguish such debt. In equity it was an actual assignment by Vincent of it, conditional only while the bill of sale remained as security for the loan. After the assignment from Thurber to Vincent was completed, the instrument held by the former was to take the *170place "of the bill of sale as security for the loan by the latter to Hayes. Thus, instead of being a security for the amount due to Thurber, it became at most only one for the smaller sum due to Vincent. He understood it to be so, and accordingly informed the plaintiff's agents at the time they purchased it, that only a certain sum was due on it; being equal to the amount advanced by him, less subsequent payments.

In February, 1861, while Vincent held both the instrument executed to Thurber and the bill of sale, Which appears never to have been canceled, Hayes borrowed of Mr. 1. S. Smith, a certain sum, which he paid to Vincent on account.of the money due him. He gave Smith his note for the amount borrowed, at sixty days, for the payment of which Vincent assigned to the latter the original instrument executed to Thurber as security. In April, 1861, after the note became due, before this action was commenced, and while the property pledged was still in possession of the defendants, Smith claiming to act hy virtue of the instrument executed to Thurber, and its assignment by the latter to Vincent, bought in the property at a sale conducted by himself by way of foreclosure.

This action was commenced in October, 1861. By the assignment to Smith by Vincent of the instrument executed by Hayes to Thurber, he (Smith,) became the mere pledgee of the debt secured by it; and if the entire legal title to it was thereby so transferred to him as to enable him to foreclose any right of redemption under it and take possession of the chattels transferred thereby, and sell them, he would still be *trustee for Vincent or Ms assigns,*of the residue of the proceeds of any sale, after deducting enough to satisfy his own .claim, or if the chattels were bought in by him, he would be trustee of the chattels themselves. Such transfer to Smith, being the mere mortgage of a debt, and of an accompanying pledge given to secure it, did not need to be recorded, any more than an absolute assignment of such mortgage; the statute of this state, on the subject extending to mortgages *171of goods and chattels only, and not choses in action. (N. *Y. Ses. L.*1833, *ch.*279.)

Under these circumstances, it appears to me, that the power of 'Vincent to transfer the mortgage held by him to the plaintiff, after its transfer to Smith, so as to enable the former to sell the mortgaged property without the assent of the latter, depends entirely upon the question whether the assignment to the latter was a pledge or a mortgage. The leading difference between these two kinds of transfers is, that the former is security for the payment of a debt, and the latter is a *conditional sale,*which becomes absolute by non-performance of the condition which requires payment of a specified sum at a fixed day. *(Butler*v. *Miller,*1 N. *Y. Rep.*496.) So much so that on default, although the mortgagor’s interest, if in possession, may be levied on and sold to the extent of his right to possess them, the chattels themselves can not be sold on execution against him. *(Stewart*v. *Slater, 6 Duer,*83, 96.) After default the mortgagee’s interest may be sold on execution against him. *(Ferguson*v. *Lee,*9 *Wend.*258.) Even a grant of a power to sell and return the surplus beyond the specified sum, does not alter the character of the instrument. *(Dane*v. *Mallory,*16 *Barb.*46. *Burdick*v. *McVanner,*2 *Denio,*170.) Even, however, in case of a mortgage, the mortgagor has a right to perform the condition where it is the payment of money, at any reasonable time after that specified in it, *(Pratt*v. *Stiles,*17 *How. Pr.*211; *S. C.*9 *Abb. Pr.*150,) and he may even reduce the damages in an action against him by the mortgagee, for conversion of the mortgaged property, to the amount specified in such mortgage, *(Hinman*v. *Judson,*13 *Barb.*629,) although this is said in *Parish*v. *Wheeler,*(22 N. *Y. Rep.*494,) to be on the ground of avoiding circhrity of action; or he may recover damages for any of it sold by the mortgagee under a power of sale beyond enough to pay the amount mentioned in the mortgage. *(Charter*v. *Stevens,*3 *Denio,*33.) This right of performance of a condition subsequent called sometimes, an equity of redemption, may be cut off by a sale, on reason*172able notice, or enforced by an action. *(Patchin*v. *Pearce,*12 *Wend.*61.)

One test whether a transfer of property is a pledge or a mortgage is, whether a debt exists independent of it, for the payment of which it is security, *(Langdon*v. *Buel,*9 *Wend.*80,) in which case it is the former. A pledge of property capable of physical delivery requires that it should be so delivered. (Ba*rrow*v. *Paxton,*5 *John.*258. *Cortelyou*v. *Lansing,*2 *Cai. Cas.*200.) Property not capable of such delivery may be pledged in writing. (*Wilson*v. *Little,*2 *N. Y. Rep.*443.) The transfer of choses in action as mere security for a debt, is always' a pledge. *(Wheeler*v. *Newbould,*16 *N. Y. Rep.*392. *McLean*v. *Walker,*10 *John.*471. *Garlick*v. *James,*12 *id.*146. *White*v. *Platt,*5 *Denio,*269.) When so received, without special authority, the pledgee can not sell them, *(Wheeler*v. *Newbould, ubi supra; see Brown*v. *Ward,*3 *Duer,*660,) or compromise them, *(Garland*v. *James, ubi supra ;)*he can only wait until they mature and collect them. (*Wheeler*v. *Newbould.)*

In the present case the assignment to Smith was clearly a pledge of the mortgage., or pledge from Hayes, assigned by Vincent, and not a mortgage or *conditional sale.*If Im could sell that mortgage and the debt it secured, on notice, and buy it in, he might then become assignee of it, and entitled to collect it by notice and sale- of the chattels, or an action. Until he did so, however, the plaintiff as an assignee of the mortgage by Hayes, subject only to the special property in Smith, which the pledge created, and for an injury to which he could only recover to the extent of his lien, *(Brownell*v. *Hawkins,*4 *Barb.*491,) might proceed to foreclose, and sell under such mortgage, and no one could object except Smith; certainly Hayes could not.

The charge of the court that the transfer to the plaintiff was subject to the rights of Smith, even if he had notice of them, as an abstract proposition, was correct, *(Muir*v. *Schenck, 3 Hill,*228 ; *Poillon*v. *Martin,*1 *Sandf. Ch.*569 ; *Sweet*v. *Van Wyck,*3 *Barb. Ch.*647,) and therefore the third.request *173to charge that “the plaintiff’s rights were prior to Smith’s, and not affected thereby,” would have been properly refused if material. The court charged moré favorably to the plaintiff, and gave him all he asked, by instructing the jury that no right or equity of Smith’s interfered with the plaintiff’s right to pursue his remedy on the mortgage for his interest in it, and if he had acquired a good and valid title to the mortgage, he had a right to go on and foreclose it. The second request to charge, “ That the defendants were not entitled to defend under Smith’s assignment as against ‘the plaintiff,”’ was therefore fully met, in substance. The principle involved was, who had the better title or superior right so far as this action was concerned ? and it was immaterial whether that was announced by stating that the plaintiff had it, whatever Smith’s rights were, or that Smith, under whom the defendants claimed, had none as against the plaintiff.

The last question on the merits arises from exceptions to a refusal to charge as desired by the first and fourth requests. The former was “that the tender made by *Smith*to West could have no effect, and did not impair the plaintiff's right under the mortgage.” And the latter, that it was wholly immaterial what sum was to be paid by Hayes, as long as he did not pay or •commence an action to redeem before foreclosure. The amount due to Vincent on the mortgage to Thurber, when he assigned it to the plaintiff, did not exceed $1035. The sum tendered was $1055. The only pretense, that it was not sufficient, was that the constable claimed the extravagant sum of $155 for commissions which was not chargeable against the mortgagor. It did not appear that the extra $20 was not sufficient to cover expenses and interest, or that any objection was made to the amount. The question of the amount due was left to the jury.

But it is claimed that the plaintiff had a right to complete his foreclosure in pais, and sell after a tender of the amount due., and that the owner’s only remedy was to commence an action to redeem. It is contended that there is a distinction between mortgages of real and those of personal property, in that respect. ‘ It was finally settled in *Kortright*v. *Cady,*
      *174
      *(21 N. Y. Rep.*343,) in the Court of Appeals, that a tender of an amount due on a mortgage on land, even after the law-day, if refused, destroyed the lien of it on the land. By giving the mortgagor the right to redeem, by rendering him only liable for the amount to be paid, in case of his conversion of the property, and by making the mortgagee liable for any sales beyond the amount of his mortgage, *(Hinman*v. *Judson, Charter*v. *Stevens, ubi sup.)*it would seem to have become a mere security for money. It is true that in the case of *Butler*v. *Miller,*(1 *Comst.*500,) the judge who delivered the opinion of the court, notices the distinction between mortgages of real and personal estate, and states that the latter is a sale'and operates to transfer the whole legal title of the thing mortgaged to the mortgagee, subject only to be defeated by a full performance of the condition. It was not necessary for the decision of that case; but some respect is due to even an obiter dictum in the court of highest resort when relying on distinctions so drawn. It has been held that after forfeiture, no tender can revest the title in the mortgagor, and even that acceptance of part is no waiver. *(Patchin*v. *Pierce,*12 *Wend.*61.) But there are authorities to the contrary. *(Jenkins*v. *Jones,*2 *Giffard,*99.) Such distinction, however, between mortgages of real and personal estate can not prevail in case of a pledge, which is settled to be a mere security, conferring only a special property in the property pledged, *(Brownell*v. *Hawkins, ubi sup.)*for any fall of value in which, after a tender, the pledgee is responsible, *(Griswold*v. *Jackson,*2 *Edw.*461,) which would not be the case if a bill to redeem was necessary. The interest of the pledgee is in fact a mere lien, like a mortgage of lands, and should be relieved by the same process. The reasoning in' the case of *Kortright*v. *Cady,*before cited, is equally applicable to pledges, and must govern this case.

The only question, therefore, which remains is whether the instrument executed by Hayes to Thurber was, in itself, a mortgage or a pledge, or became so by the agreement of Hayes and Vincent. It recites that it was executed “for securing the payment of the money thereinafter mentioned,” and its *175condition was to be void on payment of the sum of $3796, *on demand.*It contains an authority in case of non-payment to take possession of the goods, and sell them for the best price, and out of it pay the amount before mentioned and all charges, and return the overplus to Hayes. The recital as to the object of it would not render the mortgagor personally liable, *(Culver*v. *Sisson,*3 *N. Y. Rep.*264,) unless he converted the property. *(Weed*v. *Covill,*14 *Barb.*242.) This doctrine seems contrary, however, to the case of *Case*v. *Boughton,*(11 *Wend.*106,) which treats the sum mentioned in the condition as a debt. The power of selling, also, and restoring surplus moneys, seems not to defeat the absoluteness of the title on default. *(Dane*v. *Mallory; Burdick*v. *Mc Vanner, ubi supra.)*Possibly under-these decisions such original instrument was only a mortgage. But by the agreement between Vincent and Hayes (as the latter testified,) Hayes borrowed of the former the money to buy the judgment against Thurber. The former charged it against Hayes in his books. He claimed it as a debt due him; and a note taken at the same time was agreed to be applied on it when collected. There was nothing to prevent his suing Hayes for such debt, if not paid on demand. The original instrument, therefore, had lost its character, if it ever had it, as a mortgage or conditional sale, and became, by the oral agreement of the parties, a mere pledge, to secure a debt. Upon the payment by Hayes of his debt to Vincent at any time, the lien on the chattels mortgaged was gone. If there was any conflict of evidence on this point, there was no request that it should be left to the jury. The request was peremptory, that the tender was of no avail. It did not contain a hypothetical case ; and therefore, in order to sustain the refusal, any state of facts which the evidence would warrant may be assumed to exist in this case. The refusal of the court, therefore, to charge as requested was not erroneous.

An exception was taken to the admission of the. assignment to J. J. Smith in evidence after objection; but this was clearly admissible on the question of damages, if the plaintiffs were entitled to recover. His rights were subordinate to, btit *176not destroyed by Smith’s, who might equally have a right of action against the defendants for converting his property or securities. Both clearly could not have a right of action for the *same*injury, and there was no privity between Smith and the plaintiff, so that the former would be entitled to the benefit of any recovery in this case by the latter. Besides this, Smith has foreclosed his mortgage, and sold the property adversely to the plaintiff : that possibility the jury had a right to take into view in assessing damages, unless they were limited to deducting the amount due Smith from the value of the goods. Of course, the fact that the verdict of the jury was in favor of the defendants, does .not render the reading of the assignment to Smith in their hearing unwarranted. The court instructed them, notwithstanding, that the rights of the plaintiff were paramount, and no request was made as to damages.

There being no error in the admission or rejection of evidence or the part of the charge, or refusals to charge, which were excepted to, judgment must be given for the defendants, with costs of the trial and the hearing of the exceptions.