¶1Tbe question is, if tbe plaintiff can maintain trover upon the facts in evidence ? Tbe destruction of tbe steers is a wrong, for which tbe defendant ought in some form to be accountable, but it does not follow that be can maintain this action.
¶2If it appeared that tbe defendant bad a mortgage of these animals, and bad taken possession of tbe steers in tbe exercise of bis rights as mortgagee, and claimed to bold them under bis mortgage, tbe plaintiff could not maintain this action; because, though be has a special right of property, be had no right to the present possession.
¶3Though a mortgagee has tbe general right to take actual possession of tbe mortgaged property at his pleasure, yet this right may be modified or controlled by tbe agreement of the parties; and tbe plaintiff here claims that, by the agreement of the defendant to pasture the steers for tbe season for the plaintiff, be in effect agreed that he would take tbe steers, not as moi’tgagee, but as a bailee of tbe plaintiff; in other words, be would bold possession, not for himself, but for the plaintiff as bis agent. The court see no objection to such an arrangement, nor reason why the jury might not have pi’operly regarded that as a just view of the ease, upon the proof. Tbe evidence tended strongly to show that this was tbe actual condition of tbe claims and rights of the parties. Tbe defendant was himself a witness, and testified that in tbe spring of 1856, tbe season of the pasturing, be purchased tbe steers of tbe plaintiff" and paid him the money for them, and that he took tbe steers under this purchase, and drove them to his pasture in June, 1856, and that be did not take them under or by virtue of any mortgage. Tbe jury, then, if they disbelieved the evidence of a sale, might well have concluded that tbe defendant took and held the possession, not as mortgagee, but as a bailee of the plaintiff, and as bis agent, and by bis agreement be bad waived bis right to take possession as mortgagee.
¶4*242If, however, the jury-should have found that an agreement to pasture the steers might he consistent with the defendant’s right to take possession under his mortgage, still the instruction of the court was correct, that the jury might lay out of the case the mortgage, and consider only the other points of the case. The plaintiff admitted he had made to the defendant a mortgage of these steers, and nothing further appeared in relation to it. The defendant set up no title under any mortgage, he produced none, he offered no legitimate evidence of the existence of any; and he denied, in strong terms, that he took possession, or held the property by any other right than that of owner. This claim was, in its nature, entirely inconsistent with any right as mortgagee. If, having a limited right as mortgagee, a person make an absolute purchase, his mortgage interest at once ceases, being merged in the title of the owner. By insisting upon his title as a purchaser and absolute owner, the defendant-, in effect, denied the existence and validity of a mortgage, as much as if he had in terms denied it. And the jury were warranted in laying it out of the case, as not being set up or proved in the case, and as, on the contrary, being effectually disproved by the party who alone had any right to insist upon it. The plaintiff would then stand in the position of general owner, with a right to the present possession, if the defendant failed to establish his title by purchase. The interest of a bailee is, in general, divested by his destruction of the property; and it may well be doubted if a bailee for pasturing has any right to insist upon retaining possession against the general owner. Cross on Lien 25.
¶5The motion for a nonsuit was waived by proceeding in the trial.
¶6Judgment on the verdict.