107 Mich. 141 | Mich. | 1895
In December, 1892, Herman Alpern gave to Bertha Hill a mortgage upon his stock of merchandise for $3,000. He afterwards gave five other chattel mortgages upon the same stock, one of which ran to A. C. McGraw & Co. and another to Wile, Stern & Co. These five mortgages were expressly made subject to the Bertha Hill mortgage. Defendants, creditors
It is a well-settled rule that, to entitle a party to maintain trover, he must have had either actual possession of the property, or the immediate right to the possession. The sheriff had taken the goods from the possession of the first mortgagee. As against her, plaintiffs did not have the right of possession. She had not waived her right, but, on the contrary, was present, demanding a return of the property. Plaintiffs had not, by payment of the first mortgage, or payment of the amount into court to await the result of that suit, acquired the right to possession. The officer, upon the dissolution of the attachment, properly delivered the goods to the first mortgagee, who alone had the right to. possession, and he could not have done otherwise. Until the first mortgage had been declared invalid, or plaintiffs had satisfied that lien, their interest in the property did not entitle them to possession. The wrongful seizure did not divest the first mortgagee of the right of possession, or transfer that right to plaintiffs. The case comes within the
The officer returned the property to the person from whom taken, who is conceded to have been lawfully in possession, at the time when so taken. While that, of itself, may not be a bar to the action, yet the fact may be ■shown in mitigation of damages, which in such case would be nominal only, unless injury to. the property, or, possibly, by reason of the detention, be shown. Watson v. Coburn, 35 Neb. 402; Farr v. State Bank of Phillips, 87 Wis. 223.
The judgment is reversed, and judgment here for defendants, with costs <of both courts.