112 Mich. 47 | Mich. | 1897
The defendant, in the capacity of sheriff, levied upon and sold a stock of goods to satisfy an execution against the owner; and the stock, being bid in by the execution creditors for $1,800, was turned over to them. Previous to the time of the levy, Pohoral, the owner, had
At the conclusion of the plaintiff’s evidence, counsel for the defendant moved the court to direct a verdict for his client, which being denied, he proceeded to introduce evidence in defense of the action. As he did not see fit to rest his case at that point, we need not consider this question.
The defendant introduced evidence tending to show that the plaintiff had received from Pohoral a deed of a city lot worth from $300 to $600, and asked the court to charge the jury that the amount of Pohoral’s indebtedness to him, if there was such indebtedness, should be reduced to the extent of the value of said lot, which request was refused. The plaintiff claims that the only interest that he had in this property was a lien upon it for a debt, but the defendant maintains that, if this were so, it would make no difference. Had his debt been paid or partly paid, such payment would go in reduction of the damages. But, if he had other security merely, it is another matter. The logical result of the defendant’s last contention is that, in all cases of levy'on a portion of the property covered by a chattel mortgage, the defendant in
“We do not think this objection well founded. It is based upon an idea that there is some substantial difference between the damage done to a mortgagee in possession and to a mortgagee out of possession, by the seizure and conversion of the goods. It is not questioned that a mortgagee in possession may sue in trover, and recover for the conversion of property, whether he has other security or not, and whether or not his debtor is solvent. We see no possible foundation for holding that possession or present right of possession should make any difference in regard to the quantum of damages, within the extent of the security. The doctrine alleged would be equivalent to holding that no person could have a legal right to complain of being deprived of a security unless he could show the insolvency of his debtor; or, in other words, that any*50 wrong-doer could, at his pleasure, compel the holder of a security against a solvent party to look only to the personal remedy, and give up the security. This is too unreasonable á doctrine to be entertained.”
But there is evidence tending to show that Pohoral sold this lot to the plaintiff, and, while the price was not stated, there is opportunity for the claim that it was designed to he applied on Pohoral’s indebtedness. We think this question should have been left to the jury, and, if they so found, the price or value of such lot should have been applied in mitigation of damages. For this error the judgment is reversed, and a new trial ordered.