Pledgeor's transfer. The pledgeor may sell or transfer his right to a third party, who can bring trover against the pledgee if the latter, after tender of the amount of his debt, refuse to delixer the pawn. 9 Cow. N. Y. 52 ; 13 Mees. & W. Exch. 480. A creditor of the pledgeor can only take his interest, and must pay the debt before getting the pawn. And now it is settled that the pledgeor's general prbperty in the pawn may be sold at any time on execution, and the purchaser or assignee of the pledgeor succeeds to the pledgeor s rights, and may himself redeem. At common law, a pledge could not be taken at all in execution. 1 Ves. Ch. 278 ; 3 Watts, Penn. 258 ; 17 Pick. Mass. 85 ; 1 Const. 20; 1 Gray, 254. The king takes a pawn on paying the pawnee's debt.
2 Chit. Prerog. 285.
1.1. Factor. A factor cannot, at common law, pledge his principal's goods ; and the principal may recover them from the pledgee's hands. 2 Strange, 1178 ; 6 Maule & S. 1 ; 3 Bingh. 139, 603 ; 2 Brod. & B. 639 ; 4 Barnew. & C. 5 ; 1 M'Cord, So. C. 1; 6 Mete. Mass. 68 ; 20 Johns. N. Y . 421 ; 4 Hen. & M. Va. 432 ; 18 Mo. 147, 191 ; 11 How. 209, 226. The question is very fully discussed in Parsons, Marit. Law, 363. But statutes in England and in various states, as Maine, Massachusetts, Rhode Island, New York, Pennsylvania, Ohio, etc., give the factor a power of pledging, with various modifications.
7 Barnew. & Cc. 517 ; 6 Mees. & W. Exch. 572 ; 2 Mood. & R. 22 ; 3 Den. N. Y. 472; 4 id. 323 2 Sandf. N. Y. 68.
do pledgees. A pledgee may hold a pledge for another pledgee also, and it will be a good pledge to both. If the pledge be not large enough for both debts after sale, and no other arrangement be made, the prior pledgee will have the whole of his debt paid before any part of the proceeds is applied to the subsequent pledgee. If there is no priority of time, they will divide ratably. But an agreement between the parties will always determine the rights of two or more pledgees. 12 Mass. 321. Where possession is given to one of three pledgees, to hold for all three, the other two have a constrUctive possession, s hich is equally good, for the. purpose of sharing, with an actual possession. Hence the mere manual possession of one pledge will not give a right to discharge the whole debt of the holder and a part only of that of his co-pledgees. So, by the rule of con structive possession if the holder should lose the pledge by 'his own negligence, he would be liable to his co-bailees out of aetual possession, as well as to his bailor.
There is a clear distinction between mortgages and pledges. In a pledge, the legal title remains in the pledgeor. In a mortgage, it passes to the mortgagee. In a mortgage, the mortgagee need not have possession. In a pledge, the pledgee must have possession, though it be only construct ive. In a mortgage, at common law, the property on non-payment of the debt passes wholly to the mortgagee. In a pledge, the property is snld, and only so much of the proceeds as will pay his debt passes to the pledgee. A mortgage is a conditional conveyance of property, which becomes absolute unless redeeufed at a specified time. A pledge is not strictly a conveyance at all, nor need any day of redemption be appointed for it. A mortgagee
can sell and deliver the thing mortgaged, subject only to the right of redemption. A pledgee can not sell and deliver his pawn until the debt is due and payment denied.
The civil law pignut? was our pledge, and the Itypotheea was our mortgage of chattels. In the former, possession was in the bailor ; in the latter, in the bailee.
Pledge and mortgagn, therefore, are diverse in law. Bach of the following authorities recognises one or another of the preceding distinctions : 3 Brown, Ch. 21 ; Yelv. 178; Prec. in Chanc. 419; 1 Ves. Ch. 358; 2 id. 372 ; 1 Bulstr. 29; Comyns, Dig. Mortgage ; Ow. 123 ; 5 Johns. N. Y. 260; 8 id. 97 ; 2 Pick. Mass. 607; 5 id. 60; ; Penn. St; 208 ; 6 Mass. 425 ; 22 Me. 248 ; 6 Pet. 449; 2 Barb. N. Y. 538; 4 Wash. C. C. 418 ; 2 Ala. N. s. 555; 9 Me. 82 ; 5 N. H. 545 ; 4 Den. N. Y. 489 ; 5 Blackf. Ind. 320 ; 3 Mo. 516; 4 Barb. N. Y. 491; 3 Tex. 119; 1 Parsons, Contr. 591 et oeg.
The distinction between mortgages and pawns is often observed strictly. Hence an instrument giving security upon a nhattel for the future pay ment of a debt was held to be mortgage and not a pledge, because it provided for the continu &nee of the possession of the debtor until pay ment, or on non-payment at the appointed day authorized the creditor to take possession; and this was held although instead of the ordinary terms of conveyance the words used were, "I hereby pledge and give a lien an," etc. 9 Wend. N. Y. 80. If a pledge is given with the understanding that if the debt be not paid within the stipulated time the pledgee shall have the pledge, the pledge does not pass tn the pledgee nn non-payment, nnless the transaction be proved a mortgage and nnt a pledge. 3 Tex. 119 ; 2 Cow. N. Y. 824. These decisions coincide, apparently, with the deo trines of the civil law and the Frenoh Code.
1.2. It has been seen that when no definite day is appointed the pledge may be re deemed at any time. Hence, if the pledgee himself do not give notice to the pledgeor to redeem, the latter has his whole lifetime in which to do so ; and his right of re demption survives and goes to his represent atives. 3 Mo. 316 ; 1 Call, Va. 290. But for further discussion of pledge and hypothe cation see 2 Ld. Raym. 982 ; 1 Atk. Ch. 165 ; 5 C. Rob. Adm. 218 ; 2 Curt. C. O. 404 ; 1 Parsons, Marit. Law, 118.
In Louisiana there are two kinds of pledges,—the pawn and the antichresis. The former relates to movable securities, and the latter to immovables. If a creditor have not a right to enter on the land and reap the fruits, the security is not an antichrems. 3 La. 157. A pledge of negotiable paper is not valid against third parties without trans fer from debtor to creditor. 2 La. 387. See, in general, 13 Pet. 351 ; 5 Mart. La. N. s. 618 ; 18 La. 543 ; 1 La. Ann. 340 ; 2 id. 872.
Additional cases on special rules of the law of pledge are-1 Hoffm. Ch. N . Y . 487 ; 1 Hayw. No. C. 10 ; 2 id. 405 ; Wright, Ohio, 370 ; 8 N. H. 325 ; 14 id. 567 ; 21 id. 77 ; Gilbert, Eq. 104 ; 1 Harr. &G. Md. 11 ; 2 Aik. Vt. 150 ; 6 Vt. 536 ; 22 id. 274; 4 Mas. C. C. 515 ; 2 Hale, Pl. Cr. 63 ; 13 Ala. N. s. 776, 790 ; 1 La. Ann. 31, 379 ; 11 Penn. St. 120 ; 22 id. 471 ; 3 Ohio St. 270 ; 4 Eng. L. & Eq. 138 ; 13 id. 261.