50 Mo. App. 579 | Mo. Ct. App. | 1892
— Plaintiff was mortgagee and in possession of certain property seized in a suit by attachment instituted by defendants against a third party. The goods were sold pending the attachment, by order of court, under the attachment law, as being perishable. Plaintiff filed her interplea claiming the goods as her property. She was successful and received of the sheriff the proceeds of the sale. She thereupon instituted this action for damages, claiming that by reason of the attachment and sale she lost $1,493 of her mortgage lien. A demurrer was interposed to the petition showing the foregoing facts on the ground that it stated no cause of action. The demurrer was sustained, and plaintiff appeals.
The defendants contend that when plaintiff received the proceeds of the sale she waived her right to anything further; that she elected to treat the money in the hands of the sheriff as money had and received for her use; that, in accepting the proceeds of the property, she waived the tort; that, therefore, the demurrer was properly sustained. The law is unquestionably as stated in an authority cited by defendants’ counsel, viz.: Where one has wrongfully obtained money of another, or has converted his property into
It is true that if A wrongfully sell B’s property B may sue for the tort or replevy the property, or waive the tort and sue for the money which A received for the property, in which latter instance he ratifies the sale. He makes his election of remedies. But, in case of sale of property attached by order of court, the purchaser’s title is good .against the world, notwith
Again, the sale of B’s property by A was directly antagonistic to B’s right, which right B could waive by ratifying the sale and accepting the proceeds. But a-sale of perishable property by order of court in an attachment proceeding is not antagonistic to, or in subversion of, the true owner’s right. It is rather in recognition of such right, for it reserves to him that which would otherwise perish. See authorities cited in Young v. Kellar, supra. We think, therefore, that the acceptance of the proceeds of sale of attached property will not bar a suit in trespass, and our conclusion is that the demurrer ought not to have been sustained. The money stands for the property, and if it be less than the value of the property the difference is damage to the owner. The cases of sales in admiralty cited to us, we deem inapplicable. Counsel have not cited us to a case which decides the question here reviewed. In neither of the cases of Perrin v. Claflin, 11 Mo. 113, and Clark v. Brott, 71 Mo. 475, was the proceeds of the sale of the goods received. Neither was the question decided in Taylor v. Hines, 31 Mo. App. 622. In that case a portion of the, proceeds of the sale had been applied to the costs or otherwise wasted thereby, to that extent destroying the mortgagee interpleader’s security; and the action was to recover that portion of the proceeds so wasted or applied.
Judgment reversed and cause remanded.