a present title, defensible upon a condition subsequent." Jones, Chat. Mortg. § 426. Having the title the mortgagee may "take the goods into his own custody, or maintain trespass or trover for them against any one who takes or converts them to his own use. See, also, section 699, Id. The common-law rule that title passes obtains in Minnesota and New York and in many of the states. Gates v. Smith, 2 Gil. 21; Mann v. Flower, 25 Minn. 500. A mere refusal by a mortgagor or his vendee to allow the mortgagee to take possession would be a conversion. Fletcher v. Neudeck, 30 Minn. 125, 14 N. W. Rep. 513; Galen v. Brown, 22 N. Y. 37. But the Civil Code of North Dakota has made radical changes in the nature of chattel mortgages, and in consequence of such changes the rights of both parties to a chattel mortgage, as well as the rights of the public with respect to property covered by such mortgages, have been greatly modified. See $$ 4330, 4338, 4346, 4348, 4356, and 4358, Comp. Laws. Under these provisions of the statute it is apparent that the title, both legal and equitable, as well as the right of possession, remains in the mortgagor. Nor is his title divested by a default, or by any breach of the conditions of the mortgage. The title does not pass from the mortgagor under the Cole until the foreclosure is completed. Id. § 4338. But it usually happens, as in this case, that the parties insert a stipulation in the mortgage authorizing the mortgagee, upon default, or upon condition broken, to take the property into his possession. Appellant concedes that the mortgagee in the case at bar had the right, before suit commenced, to take the property into his possession, and to foreclose, but insists that the elevator company bought the vendible interest of the mortgagee in good faith, and without actual notice of the existence of the mortgage, and that it had assumed no dominion over the property hostile to the rights of the mortgagee, and consequently was entitled to a demand before being mulcted by costs of suit.
We are of the opinion that appellant's contention is sound upon principle, and therefore hold that a demand was essential before suit. After condition broken, as well as before, the mortgagor was the absolute legal and equitable owner of the
