General Motors Acceptance Corp. v. Powers

The question to be decided upon this appeal is whether replevin may be had by a chattel mortgagee for the possession of the personal property mortgaged when the instrument contains a provision giving him the right of possession upon default. The complaint alleges that Laura M. Powers gave the Grody Chevrolet Company a chattel mortgage on a Cadillac automobile to secure a debt of $312.24 which was to be paid in twelve monthly payments of $26.06 each. It contained the following provision: ""3. In the event of default in payment of any installment or sum payable hereunder . . . the full amount shall be immediately due and payable, and the mortgagee, or any sheriff or other officer of the law, may take immediate possession of said property without demand (possession after default being unlawful). . . . In the event said property is so retaken, the mortgagee may sell and dispose of the same at public or private sale, notice of [137 Conn. 147] which is hereby expressly waived, with or without having said property at the place of sale, and upon such terms and in such manner as mortgagee may reasonably determine; mortgagee may bid at any public sale. From the proceeds of any such sale, mortgagee shall deduct all expenses for retaking, Storing, repairing and selling said property. The balance thereof shall be applied to the total amount due; any surplus shall be paid over to the mortgagor, and in case of a deficiency, mortgagee may recover, and mortgagor shall pay, the same with interest."" It is further alleged that the Grody Chevrolet Company assigned the mortgage to the plaintiff, that Mrs. Powers was in default in her payments and that she was wrongfully in possession of the automobile although demand had been made upon her to deliver it to the plaintiff.