60 Miss. 933 | Miss. | 1883
delivered the opinion of the court.
It would seem that the question presented by this record ought frequently to have arisen and have long since been settled; but if there is a case in the English or American reports directly in point an exhaustive search on the part of ourselves and of counsel has failed to bring it to light.
One Elder executed a trust-deed on a mule belonging to him, whereby the legal title to the animal was conveyed to Lock, as trustee for Gross & Co., to whom Elder was indebted ; the trust7deed constituting a mortgage on the mule for the security of the debt. The mule remained in the possession of the owner with the right in the trustee to take possession of and sell it upon the maturity of the debt. The debt matured and remained unpaid, but the animal continued in the possession of the owner and mortgageor, and while so in his possession was run over and killed by the cars of the Chicago, St. Louis and New Orleans Railroad Company. The railroad company had no actual knowledge of the existence of the trust-deed, though it was duly recorded, and being called upon by the owner for compensation, paid him the agreed value of his animal. The owner having failed to pay over to his mortgagee
Is the plea good ? There is no suggestion of any collusion with the owner on the part of the railroad company, and we think the company was not affected with constructive notice of the rights of the mortgagee by the record of the trust-deed, since our registry laws are intended only for the protection of pui’chasers and creditors, and in no manner affect the rights or liabilities of- tort-feasors. Though the person injured may, in most instances, waive the tort and sue in assumpsit, the wrong-doer in fact never enters into a contract, and as he cannot claim the benefit of the registry .acts, his liabilities should not be enhanced by them.
It is perfectly well settled that the mortgagee, who has actual possession or the right of possession of the thing mortgaged, .may sue in tort for a conversion of or injury to it, and the rule seems to be the same as to the mortgageor under like circumstances. In either case, possession gives the right of action against the wrong-doer, who will not be allowed to set up against the possessor an outstanding title or equity in another with which he has no connection ; nor is the principle affected by the record or non-record of the mortgage. Parkhurst v. Jacobs, 17 Mich. 30; Wright, 552; 4 English (Ark.), 46; Pratt v. Harlow, 16 Gray, 37 ; 2 Hilt. 536 ; 30 Mo. 423 ; 8 Pick. 333 ; Jones on Chat. Mort., sects. 237-247 ; 11 Shep. 403; 3 Cush. 399 ; Hill, on Torts, 594, et seq.
It is a universal rule of law that no man shall be twice harassed for the same cause of action, and since he who has injured mortgaged property is liable to suit by him who has actual possession or the right of possession, whether the party suing be mortgageor or mortgagee, it must follow that a recovery in full for the entire inj ury by one will be a bar to a suit by the other. It is upon this principle that it is held that either the bailor or bailee of personal property may maintain
We regard it as a noteworthy circumstance, that while this principle as to bailment is laid down by all the text-writers, and in numberless cases where the party first suing was permitted to recover the full value of the thing bailed, upon the idea that such recovery would enure to the benefit both of bailor and bailee, the only case we have been able to find where a second suit by the other party in interest was defeated by reason of a previous adjudication as to. him first suing, is the case of Green v. Clarke (12 N. Y. 343), in which a judgment against the bailor was held conclusive against the bailee in a second suit for the same cause of action.
We think the principle is decisive of the case in hand. The mortgagee here had the right of possession, but left the actual possession with the mortgageor, who, by reason of that possession could have compelled payment from the railroad company. The company had the right to do that which it could by law have been compelled to do, and having made payment in full to the mortgageor (who must be regarded as the bailee of the mortgagee), without actual knowledge of the latter’s right cannot be further vexed for the same injury.
Affirmed.
