19 Pa. 71 | Pa. | 1852
The opinion of the Court, filed was delivered by
The Bank was mortgagee of certain land of Ann C. Bayard, on which was a furnace for the manufacture of iron, which was worked by means of a steam engine, boilers, blowing apparatus, bellows, receiver, &c., erected by the owner of the land. She sold the engine and machinery to her brother, Richard H. Bayard, who sold the same to Joshua E. Driver, who issued a replevin out of the Circuit Court of the United States, and thereupon A. E. Roberts, the marshal, took and carried away the engine and machinery. The marshal in the United States Courts occupies the same position as a sheriff does in our state Courts, and his writ furnishes him the same protection. But a writ of replevin is effectual for the delivery of personal property only; and it furnishes no justification to an officer, who, under it, severs and delivers
It is insisted, however, that because the engine, &c., were put up after the giving of the mortgage, therefore they constituted no part of the mortgage security, and might be removed without doing any wrong to the mortgagee. But this is not so. As the mortgagee may suffer by the depreciation of the property, arising from fluctuations in value, from accident, and from neglect, so he may be benefited by its appreciation, whether the same arises from the proper cultivation and improvement of the property, or from any other cause. No other rule could be at all practical.
It is further insisted that Richard H. Bayard, after his purchase and before the issue of the replevin, had severed the engine and machinery from the freehold, and that the replevin was executed after the property was severed, and without notice of the claim of the mortgagee. But we can draw no inference from this proposition, because the jury have negatived all the facts assumed in it.
We do not perceive that this case has, or was treated as having, any proper connection with the various proceedings against Ann C. Bayard in the Common Pleas of Dauphin, including the action and writs of estrepement on the plaintiff’s mortgage. The sheriff did not properly execute those writs; but, to avoid an indecent conflict of authorities, suffered the defendants to remove the property. That remedy thereby became ineffectual, and the present action is brought as a substitute. The writs of estrepement may therefore be of no value here, but as means of proving that the defendants below were fully warned of the plaintiff’s claim, and perhaps in aggravation of the damages.
It is said that the Court below erred in their charge as to damages. But wherein the error consists we are not informed, and we do not choose to guess. This objection is therefore dismissed, as being entirely too general. We feel sure, however, that the defendants did not suffer injustice from the instructions of the Court. The plaintiff’s mortgage was for §7200, and, on a sale under it, the land, after the removal of the engine, &c., brought but $100, charged with a prior mortgage; and thus it appears that the waste injured the second mortgage alone. In issuing the replevin, the engine, &c., were valued at $5000 ; the witnesses all place a higher estimate on them, and the jury have assessed the damages at $5800. Surely this verdict is not too high. But if this were doubtful, the spoilers, and not the righteous creditor, should bear the consequences of the doubt raised by themselves.
It is somewhat strange that the only exceptions to evidence are founded upon offers to prove the very allegations of the declaration. If the defendants did not wish to hear these proved, they should
But it is insisted that the Bank had no such interest in the property as to entitle it to this action, having no title but as second mortgagees. Yet the declaration alleges, and the jury have found, that the mortgagor is insolvent, and that by the defendants’ act, the plaintiff’s mortgage is rendered almost entirely valueless. It is of the very nature of the action on the case that it is adapted as a remedy for all legal wrongs, for redress of which the- other forms of action are not applicable. And the argument of the defendant in error is perfectly legitimate in this state, that the fact that an injunction lies to prevent such an act, 2 Johns. Ch. R. 128, proves that it is regarded by the law as an injury. And our law, granting an estrepement in such a case as this, proves the same thing. Besides this, the property .was mortgaged or pawned to the plaintiff, and an injury to the thing pawned is a wrong done to the pawnee, if thereby he loses his claim or any part of it; and though the number of previous mortgagees may increase the difficulty of proving that the plaintiff was injured, yet this furnishes no bar in favor of a wrongdoer. . The plaintiff had such an interest as was entitled to protection.
Judgment affirmed.
