has not proceeded to foreclose in accordance with the law. No opportunity was given to the elevator company to deliver up the wheat to the plaintiff. There was no refusal to deliver the wheat, and no demand before suit commenced.
Counsel claims in his brief that "appellant was entitled, before being subject to the costs of an action, to a reasonable time in which to investigate the right of the mortgagee to the possession of the property. This right was not accorded to it." To decide the question presented it becomes necessary to determine whether a purchaser who buys chattels without actual notice, but with constructive notice of the existence of a chattel mortgage upon them, is, in making such purchase and taking possession of the property, an intentional wrong-doer. Authorities are much divided upon the question of whether a vendee who takes possession from a bailee who had no authority to sell may plead a non-demand in a suit for conversion. The states of New York, Pennsylvania, Connecticut, Indiana, and some others, hold that, where the purchase is bona fide, a demand before suit is essential. See authorities collated in Bigelow, Lead. Cas. Torts, pp. 446, 447. It has been held in Massachusetts that a mere purchase and taking possession bona fide from one without authority to sell, where there is no further act of dominion, does not itself constitute a conversion. This, we think, is the more equitable rule. Gilmore v. Newton, 9 Allen, 171. See Kellogg v. Olson, 34 Minn. 103, 24 N. W. Rep. 364. In this case the purchaser is chargeable with constructive notice of the existence of the mortgage, and we think that no demand would be necessary if the purchase was illegal as to the purchaser; but the question is whether the elevator company, in buying and taking possession of this wheat, and doing no more, was a wrong-doer. The answer to this inquiry turns upon whether a mortgagor of chattels, after default, the mortgage having been filed, has a vendible interest in the mortgaged property. If the mortgagor has such interest, it follows that a purchaser from him is not a wrong-doer, and that the mere fact of purchase and taking possession would not work a conversion. At common law the mortgage "vests the title to the chattel in the mortgagee; not an absolute title, indeed, but
