95 Ill. App. 303 | Ill. App. Ct. | 1901
delivered the opinion of the court.
It is contended by counsel for appellant that it was error to admit evidence as to ownership of the chattels replevied in a suit upon the replevin bond, after the defendant in such suit had been defaulted, and there remained only an inquiry as to the damage.
There is a diversity of decision upon the question as to whether, in an action upon a replevin bond, the obligor may show by way of reduction of damages that the ownership of the property is in himself, and not in the one who, as a defendant in the replevin suit, has prevailed, and obtained an award of a retorno. It seems, however, by the weight of authority to be the rule at the common law, and in the absence of any statutory provision, that such ownership could not be set up by plea as a bar to the suit upon the bond, for the judgment of retorno habendo, whether awarded after a trial of the right to the property, or upon non-suit, is a determination of the right of the replevin defendant to the return. But in a suit upon the bond where there is a failure to return the chattels, the damages should nevertheless be measured by the rights of the replevin defendant, who is the plaintiff in the suit upon the bond. If he had only a special interest in the property,'his actual damages .might be very different from what thei'’ would be if his ownership was general. Therefore it has been permitted, in assessment of damages in suits upon replevin bonds, when the title was not adjudicated in the replevin suit, to show that the obligor is the owner of thé chattels, not as a bar' for the purpose of defeating the suit upon the bond, but merely in mitigation of the damages. And this has been sanctioned as well in proceedings upon a writ of inquiry after default of the defendant in the suit upon the bond. Belt v. Worthington, 3 Gill & J. 247; Wallace v. Clark, 7 Blackf. 298.
In the former case the Maryland court said :
“ The object of the law in prescribing that a replevin bond shall be entered into by a plaintiff before he should have the benefit of the writ, was only to give indemnity to the defendant. If, in truth, he had no right to the property at the time of the institution of the suit, the rejection of the evidence, by putting it in his power to recover the value of the goods, would enable him to overreach a just measure of indemnity, and inflict upon the plaintiff a penalty which the law never contemplated.”
The question considered by the court was the admissibility of evidence of the ownership of the chattels by the defaulted obligor on the replevin bond upon an inquiry to assess damages. And in the latter case the Indiana court said : “ The amount of damages in an action on a replevin bond must depend very materially on the right of the plaintiff to possess and retain the property. If the property belonged to him, his damages would be according to its value. But if he had no right whatever to the property, he sustained no damage by the refusal of the obligor to return it. There is, therefore, a propriety, when' the amount of damages is in question, in allowing the defendant to show that the plaintiff had no claim to the property;” and the court held that on a writ of inquiry the defendant in a suit upon the replevin bond might show title to the chattels replevied. There are decisions holding contra', but the Supreme Court of this State has indicated that it approves of the doctrine as above announced. In King v. Ramsay, 13 Ill. 619, the court, citing with approval the two cases above noted, said:
u To avoid circuity of action, the obligee should only be allowed to recover against the general owner the value of his special interest in the property. This view is fully sustained by the cases of Belt v. Worthington, 3 Gill & Johns. 247, and Wallace v. Clark, 7 Blackf. 298. In those cases the actions of replevin had been dismissed and judgments entered for a return of the goods replevied. In actions afterward brought on the replevin bonds, the obligees (obligors) were permitted to prove in mitigation of the damages, that the plaintiffs in replevin had title to the property.” See also Warner v. Matthews, 18 Ill. 83.
The effect of our statute, permitting a defense of this nature in suits upon replevin bonds, when no adjudication of the property rights has been had in the replevin suit, can not, we think, operate to limit this well recognized right at common law of the obligor to thus reduce the damages to be assessed against him.
The statute, Sec. 26, chapter 119, R. S., provides that “W hen the merits of the case have not been determined in the trial of the action in which the bond was given, the defendant in the action upon the replevin bond may plead that fact and his title to the property in dispute, in said action of replevin.”
If the effect of this statute be to make such defense, when pleaded, a bar to the action upon the bond, it is a modification of the common law; but if it merely operates to make the matter thus pleaded a mitigation of the damages, then it would seem, from the authorities above noted, to be merely declaratory of the common law rule. In either event it works no limitation upon the right at common law to prove title of the obligor upon the bond for the purpose of mitigating the damages, when such title has not been adjudicated in the replevin suit, and this as well upon an inquiry to assess damages as upon a defense to the suit.
We are of opinion, therefore, that the learned trial court did not err in receiving the evidence as to ownership of the chattels.
It then remains only to determine whether appellee’s principal had priority of right to the chattels under the mortgage over the right of appellant’s usee under the bill of sale. The bill of sale was made expressly subject to the mortgage. By failure to foreclose his mortgage within a reasonable time after maturity of the note secured, Cramer might lose the right of his lien so far as creditors or purchasers were concerned, but he would not thereby lose his lien as against the mortgagor. Did Paine, wrho claims under this bill of sale, stand as a creditor, who might avail of this failure of Cramer to foreclose his lien, or did he stand only in the same right as the mortgagor ? We think the latter is the correct conclusion. The bill of sale was made expressly subject to the mortgage. Stevens, and through him Paine, took only the mortgagor’s right in the chattels, subject to the lien of the mortgage as it operated against the mortgagor, and as against the mortgagor its validity was not affected by the failure to foreclose within three days after maturity of the note. Van Pelt v. Knight, 19 Ill. 535; Arnold v. Stock, 81 Ill. 407; Sumner v. McKee, 89 Ill. 127; Sondheimer v. Graeser, 172 Ill. 293; Gundy v. Biteler, 6 Ill. App. 510; Cunningham v. Nelson Co., 17 Ill. App. 510.
The bill of sale under which appellant claims, was executed and delivered before the maturity of the note secured by the Cramer mortgage, under which mortgage appellee’s principal claims title. We are therefore of opinion that the right to the chattels in question is shown by the evidence to have been in Cramer under his mortgage, and that the court properly refused to allow any damages for the value of the chattels in the assessment of the appellant’s damages in the suit upon the replevin bond.
The judgment is affirmed.
