tract of pledge.' If the pledge be made to secure the payment of a sum of money to fall due at some future time, or to secure the pledgee interest; so allowed where stocks were held as a pledge or security: Freeman v. Simons, 7 Phila. R., 307. NEW YORK.-The terms of the statute allow a sale of the defendant's interest on an execution against the pledgor, and provide that the purchaser shall ac. quire that interest or right, and shall be entitled to the possession of the goods or chattels on complying with the terms and conditions of the pledge. 3 R. S., 645, 5th ed. The statute does not authorize anything adverse to the rights or the interest of the pledgee; Bakewell v. Ellsworth, 6 Hill, 484; and it makes no provision for a sale of the interest of a mortgagor of chattels; it leaves that under the rule of the common law. Hull v. Carnley, sheriff, 11 N. Y., 501, 505. The new Civil Code of Procedure of New York has the following, § 1412: "The interest of the judgment debtor in personal property, subject to levy, lawfully pledged, for the payment of money, or the performance of a contract or agreement, may be sold, in the hands of the pledgee, by virtue of an execution against property. The purchaser at the sale acquires all the right and interest of the judgment debtor, and is entitled to the possession of the property, on complying with the terms and conditions upon which the judgment debtor could obtain possession thereof. This section does not apply to property, of which the judgment debtor is unconditionally entitled to the possession." Judg ing from the marginal note, this section is not intended to change the effect of the previous statute; this note is in these words: "Interest of bailor in goods pledged may be sold." MICHIGAN.-The statute allows a sale on execution of goods or chattels pledged by way of mortgage or otherwise to secure the payment of money or the performance of any contract, subject to the lien; and permits the purchaser to pay the amount secured or fulfill the contract at any time before the actual foreclosure of the mortgage or pledge. 2 Compiled Laws, 1871, page 1741. The lienholder's rights and interests are protected equally under proceedings by garnishment. Id., 1819. Independent of the statute, the interest of a mortgagor of chattels not entitled to hold them for any definite time, cannot be levied on and sold under an execution; he has no legal or vendible interest. Eggleston v. Munday, 4 Mich. (4 Gibbs), 295; a payment in any manner of the debt secured by a chattel mortgage, extinguishes the title held by the mortgagee. Place v. Grant, 9 Mich. (5 Cooley), 42; all property pledged as security for a debt reverts to the original owner upon the extinguishment of the debt. Merrifield v. Baker, 9 Allen (Mass.), 29. 1 Stief v. Hart, 1 N. Y., 20; Stief brought replevin against Hart, sheriff, for a quantity of goods which defendant had levied upon and taken on execution; on the trial it appeared that the plaintiff held them in pledge, and that the sheriff took the goods from his custody on an execution against the pledgor; and the circuit judge charged the jury that the sheriff had a right so to take the property into his possession in order to sell the pledgor's interest therein. Plaintiff excepted, and moved the supreme court for a new trial; the motion was denied, and the court of appeals affirmed the judgment of the supreme court by a vote of four to four. against a conditional liability that may or may not accrue against him, and which cannot be determined at the time of the sale, it is manifest that the goods pledged must abide the terms of the contract under which the pledgee holds them. The purchaser's right of redemption is the same exactly, and dependent upon the same terms and conditions as that of the pledgor. Ho is entitled to possession of the goods, on complying with the terms and conditions of the pledge; and when these cannot be complied with until some future event has occurred, the pledge must of course be redelivered into the hands of the pledgee. § 261. Our statute, in common with the statute law of neighboring States, concedes to the officer rights over the pledged goods which the defendant in the execution could not exercise; it allows him to levy upon and seize the goods at a time when the pledgor has neither the pos session, nor any right of control over them-action to be justified only on the ground of public policy. To prevent frauds, the law allows a sale of the pledgor's interest, and also provides that the sale of personal property shall be made in such a manner that the same may be inspected, and may sell to advantage. By necessary implication, the statute allows the officer to take and expose the goods for sale. It authorizes the sale, and it prescribes the manner in which the officer must sell. It goes no farther; it does not authorize him to deliver the goods to the purchaser; it only declares the purchaser's right to the possession, on complying with the terms and conditions of the pledge. He takes therefore by his purchase the equity of redemption, and nothing more'; the same as a purchaser of property covered by a chattel mortgage.3 With this difference, on a sale of the mortgagor's interest in goods, where he has a right to the possession of them for a definite period, the goods may be delivered to the purchaser.1 16 Hill R., 484; 2 R. S., 464, § 20, 3d ed. 220. When goods or chattels shall be pledged for the payment of money, or the performance of any contract or agreement, the right and interest in such goods of the person making such pledge, may be sold on execution against him, and the purchaser shall acquire all the right and interest of the defendant, and shall be entitled to the possession of such goods aud chattels, on complying with the terms and conditions of the pledge." 3 R. S., 645, 5th ed., N. Y. The mode of sale is the same as in other cases. Id., 648. Bakewell v. Ellsworth, 6 Hill, 484; Stief v. Hart, 1 N. Y., 20; Williams v. Amory, 14 Mass., 27. White v. Cole, 24 Wend., 116, 141; Bakewell v. Ellsworth, 6 Hill, 484; Wheeler v. McFarland, 10 Wend., 318. Hull v. Carnley, 11 N. Y., 501. It is criminal in the mortgagor to sell the goods with intent to defraud a mortgagee or purchaser. N. Y. Laws of 1871, Ch. 77. There are other cases in which the law clothes the officer with rights superior to those of the defendant in the execution. Where one of two partners has the actual possession of the partnership property, the officer with an execution against the other partner, is armed with an authority to seize the partnership goods, and to use force if necessary, to take them into his custody; and that not merely for the temporary purpose of effecting a sale and then restoring the possession, as in the case of pledged goods; but the sheriff is authorized to deliver the possession to the purchaser. In order to make a sale of the interest of the defendant in the execution, he has the right to levy upon and take the goods into his possession-a greater exercise of power than the law accords to that defendant himself.1 § 262. It is the duty of the sheriff to offer the property for sale in such lots and parcels as shall be calculated to bring the highest price; and in the fulfillment of this duty, it is proper for him to sell several articles and different kinds of property, covered by a chattel mortgage, in one parcel; for unless one man purchases the whole, he cannot acquire the equity of redemption; there being no legal way of apportioning the lien of the mortgage relatively upon the different parcels of property.2 A sale in parcels to different parties, therefore tends to a sacrifice of the property and is injurious to the mortgagor; it is also in some cases very prejudicial to the mortgagee, dispersing and placing the property beyond his reach. On both accounts it ought to be sold in mass, and subject to the lien.3 The same rule must hold good on a sale of personal property subject to the pledgee's lien. If we assume that the things pledged are about equal in value to the debt they are held to secure, it is evident that on a sale of them in different parcels to different persons, they will scarcely be vendible at any price; because no single purchaser can afford to redeem the pledge, and the law does not enable him to redeem it in part. The things pledged must therefore be sold in one parcel, subject to the lien. § 263. We may often ascertain the interest of the parties, from the rule defining what may be levied on and sold under execution. Personal Phillips v. Cook, 24 Wend., 389; Melville v. Brown, 15 Mass., 82; Waddell v. Cook, 2 Hill, 47. The judgment being recovered against a partner for his individual debt, the sheriff can only sell the defendant's interest. Walsh v. Adams, 3 Denio, 125; Berry v. Kelly, 4 Robt. R., 105, 123. The interest of a special partner in a limited partnership cannot be sold on execution. Harris v. Murray, 28 N. Y., 574. 3 Manning v. Monaghan, 23 N. Y., 539, 544; S. C., 28 N. Y., 585. property pledged by way of a mortgage, may, after forfeiture, be levied upon by virtue of an execution against the mortgagee, although it remains in the hands of the mortgagor. A mere chose in action cannot be levied upon and sold on execution. Bonds, notes, shares of stock and property of that nature, cannot be seized and taken in execution by the sheriff; neither can a mere equity in the proceeds of personal property be sold on execution. But when the mortgagor of a chattel has a right to redeem and a right to the possession for a definite period before the property can become forfeited, he has such an interest as may be sold on execution. The purchaser in such cases takes the property subject to the incumbrance; he purchases the right of the mortgagor, which is a right to the possession and absolute ownership, subject to the incumbrance; but if the mortgage at the time of the sale on execution has been forfeited, the mortgagor has no longer the right of possession; all the right he then possesses is an equity, which cannot be thus sold. So where it is a condition in a lease of personal property that the lessee shall keep it upon particular premises, and not remove it therefrom, a removal of such property by the lessee operates as a forfeiture of the term and divests his title, so that no interest in the property removed remains in him that can be sold on execution; because by the forfeiture the title is vested in the lessor with the right of immediate possession.* The established principle is that a person in possession of a chattel, having a right to such possession for a specific time, has an interest which may be sold; and when that interest expires the owner is entitled to his goods and may bring an action for them. The officer sells only the interest of the party in possession; and even though he assumes to sell the absolute property in the goods, the purchaser will acquire no greater right in them than that possessed by the defendant in the execution." 1 Ferguson v. Lee, 9 Wend. R., 258; see also 4 Denio R., 171; Mattison v. Baucus, 1 N. Y., 295; 48 N. Y., 556. Ingalls v. Lord, 1 Cowen R., 240. 3 Denton v. Livingston, 9 John. R., 97. Bank notes or bills may be levied on as money; Handy v. Dobbin, 12 John. R., 220, 395; but not as the money of a party for whom an officer has collected it, until paid over; Dubois v. Dubois, 6 Cowen, 494; Betts v. Hoyt, 19 Barb., 412; 14 How. Pr., 477. 4 Hendricks v. Robinson, 2 John, Ch. R., 296. 5 Bailey v. Burton, 8 Wend. R., 339; Marsh v. Lawrence, 4 Cowen R., 461; Otis v. Wood, 3 Wend. R., 500; Champlin v. Johnson, 39 Barb., 603. € 3 Wend. R., 498; in McCracken v. Luce, not reported, it was held, that a mortgagor of a canal boat, in possession and having the right of possession for a certain time, had an interest which was the subject of sale on execution. 7 Van Antwerp v. Newman, 2 Cowen R., 543. § 264. Is the pledgee's interest in the things pledged such that it can be levied upon and sold under an execution against him? His right to them inheres in the debt they are held to secure; he has no right to derive from them any benefit accruing from the use of them; separate from the debt, he has no vendible interest in them; and the debt itself is a chose in action, not capable of sale under an execution. The debt being due, the pledgee has no interest in the goods pledged for any definite period; he holds them subject to the owner's call, on payment of the debt.' Hence a sale of his interest on execution, will not avail the purchaser unless it carries with it the debt, which is the basis of his interest; and to give the sale that effect, would indirectly authorize the sale of a chose in action under an execution. The theory that the pledgee's lien may be severed from the debt, so that the debt may be owned by one man and the lien held by another, is fraught with many difficulties. His property in the goods is special and qualified; it is not a distinct and independent right of property; it is a lien, a collateral security; it is not in its nature capable of separation from the original debt. It is no more capable of being separately sold than a mortgage given as collateral security for the payment of a bond only the mortgage declares on its face its ancilliary character. The bond is the principal debt; the mortgage is only an incident to it; a transfer of the principal debt carries with it the incident; but the incident is not capable of being transferred separate from the original debt.2 ; § 265. On the death of a pledgee, his interest in the pledge passes to his legal representatives, together with the debt to secure which it is held. The debt passes by operation of law, and the possession of the pledge accompanies it; the bailee's death does not otherwise work any change in the right of property, or in the duties resulting from the contract of pledge. Equally on the death of the pledgor, his title and rights pass to his legal representatives; his personal estate vests in 1 In Saul v. Kruger, 9 How. Pr., 569, the Superior Court of New York hold that the pledgee's interest may be levied upon and sold on execution; and in Felt v. Hege, 23 How. Pr.. 359, 362, the Supreme Court expresses a contrary opinion. 2 Merritt v. Bartholick, 47 Barb., 253; S. C., 36 N. Y., 44. A pledge like a mortgage is intended to accompany and secure the principal debt. The pledge gives a lien ; so does the mortgage; by this lien the property is held to pay the debt. An absolute transfer of the bond and mortgage to the mortgagor, the owner of the premises, extinguishes the lien. 38 Barb., 425; 48 Barb., 120; 44 N. Y., 666. |