27 Mich. 529 | Mich. | 1873
The stipulation in the lease was not a mortgage. — Holmes v. Hall, 8 Mich., 66.
It was an agreement which, as between Dalton and Laudahn, empowered the former to subject the property pursuant to its provisions. And by those provisions the right to take property on account of rent could be exercised only on default in the payment of rent.1 ■ The 20th of December was pay-day, and Laudahn had the whole day in which to make payment. There could be no default as to rent, therefore, until that day should be past. But the property was taken on the 20th, and consequently before default made in the payment of rent. There was no right given by the stipulation to take property to meet any other claim than rent, and it therefore becomes unimportant to inquire whether the writing on the back of the lease formed a part of it or not. As the agreement did not warrant the taking on the 20th, the act was a trespass.
The plaintiffs in error claim that if Laudahn was entitled to recover any thing, it could not exceed such damage as he suffered in consequence of being deprived of the-property from the time it was taken, on the 20th, to the-21st, when he would have been authorized to seize it; and this claim is based on the claim giving the right to take- and sell thé property in case of default, and to retain out of the proceeds not only the rent due, but that to grow due, and on the fact that the rent due at the time, together with that to come due subsequently, would exceed the sum* for which the property sold.
Dalton had no interest in the property by force of the agreement, nor any right to take it on the 20th. Laudahn was owner and had full legal right to dispose of the chattels at any time during that day, and make the money to pay the rent. Such being the position of the parties as to their legal rights, Dalton nevertheless took the property and disposed of it, and he claims that if he had not taken it when his taking was unauthorized and a trespass, he might have taken it when his taking would have been warranted.. As, however, he did not take it by authority, but by wrong,, and by so doing precluded Laudahn from exercising his legal right to turn the property and pay the rent due on the 20th, I am unable to discover any satisfactory ground, for saying that the damages should have been regulated by the circumstance that if the property had not been taken on the 20th, and Laudahn had been in default respecting; the rent, there might have been a taking on the 21st.-After the events which happened, it was not admissible-to assume as a reason for regulating the recovery, that
The rule seems to be settled that when property is tortiously taken, the owner is not only entitled to an action, but to full compensation in damages, and that no mere act of the wrong-doer will suffice to discharge him. A subsequent sale on legal process against the owner, but in favor of the trespasser, it has been decided, cannot be shown to reduce the damages. — Otis v. Jones, 21 Wend., 394. It would be otherwise if the subsequent legal proceeding .should appear to have been in favor of some one other than the trespasser. — Higgins v. Whitney, 24 Wend., 379. If, then, Dalton had, after his tortious seizure on the 20th, proceeded against the property by legal process, to a sale and application of the proceeds on some demand held ■by him against Laudahn, his subsequent proceeding under ¡process would not have been admissible to reduce the damages in an action for the original tortious seizure, and it is difficult to see how his position can be any better when, as in this case, he proceeds under a mere power conferred by the other party.
As this view disposes of the objections, the judgment must be affirmed, with costs.
