#### Walter H. Stearns, Respondent, *v.*Jacob F. Oberle, Appellant.

(Supreme Court, Appellate Term,

May, 1905.)

Chattel mortgage — Title of mortgagee — Time of payment—Alteration after execution — Eights of purchaser.

The title to property covered by a chattel mortgage is in the mortgagee and can only be divested by payment.

Where no time is specified in a chattel mortgage, at which the debt is to be paid, it is payable immediately and no demand is needed to enable the mortgagee to foreclose.

*350The fact that an alteration was made in a chattel mortgage after its execution and delivery will not divest the title of an innocent purchaser acquired under the instrument as made.

Appeal from a judgment of the Oity Court of the city of New York awarding plaintiff possession of one automobile surrey of the value of $1,000, with costs, and from an order denying defendant’s motion for a new trial.

Roderick Begg (Wayne M. Musgrave, of counsel), for. appellant.

David C. Myers, for respondent.

Scott, J.

Although the case is bare of exceptions, still it was tried and submitted to the jury upon such a 'total misconception of the law that justice requires, in my opinion, that there should be a new trial. The learned justice charged the jury as follows: *“*I charge you as a matter of law that if you mortgage a chattel for a certain sum of money and you make no default of any kind or nature, the mortgagee has no title and derives no title to that mortgage unless there is a failure of payment. In other words the mortgagee had no more right to take this automobile than you or I or any other individual had of going into this place and taking it.” Of course the learned justice could not have meant to charge the jury'that a mortgagee had no title to the mortgage itself until after default in payment. What he doubtless meant to convey to the jury was that the mortgagee had no title to the chattels mortgaged until after default. But this is erroneous. A mortgagee under a chattel mortgage takes title at once to the mortgaged chattels, and retains it unless his title be divested by payfment. As to the right of the mortgagee under this particular mortgage to take possession of the property, the learned justice overlooked, probably because his attention was not ' directed to it, the fact that no time is fixed by the mortgage for the payment of the debt. In legal effect this made the debt payable immediately upon the execution of the morí*351gage, no demand for payment was requisite and the mortgagee might foreclose at any time. It was erroneous, therefore, to charge the jury, as matter of law, that- the mortgagee had no right to take possession of and sell the automobile. It is testified to that the chattel mortgage was altered after plaintiff signed it, but it is not shown by whom or under" what circumstances the alteration rvas made, or even that it was not done with plaintiff’s consent. Such alterations at all events were made after the execution of the instrument, - and the automobile sued for was in the original mortgage. I do not think that the alteration of an instrument of this nature, after execution and delivery, divests the title of a purchaser acquired under the paper as made. The result of the judgment appears to work an injustice. The plaintiff admittedly borrowed $300 and gave a mortgage upon this automobile as security. At the most he has paid but $120 of the loan, treating his payments of $30 a month as payments on account of the principal. The defendant, apparently an innocent purchaser, has paid $85 for the automobile, and now finds himself compelled either to give it back or pay the plaintiff $1,000 besides a bill of costs, while plaintiff is to get back his automobile notwithstanding at least $180 of the debt for which it was pledged remain unpaid.

The judgment should be reversed and a new trial granted, with costs to appellant to abide the event.

Teuax and Dowliug, JJ., concur.

Judgment reversed and new trial granted, with costs to appellant to abide event.