45 Mo. App. 252 | Mo. Ct. App. | 1891
Lead Opinion
— The defendant Springer was the sheriff of Barton counts'-, and the other defendants were his-sureties on his official bond. This action is on the bond, for damage alleged to have accrued to plaintiff by reason of the loss of his homestead in a certain tract of’ land. The land was incumbered by a-certain deed of' trust for $1,000, known as the Homan deed of trust, which being deducted from the value of the land left it-of less value than $1,500, being the value allowed for a. homestead in the country in this state. F. Egger &- Sons sued out an attachment for debt against relator,, whereupon defendant Springer, as sheriff, levied the-writ of attachment on land and a lot of personal property, including a large quantity of corn, standing and growing on the land. None of the personal property was taken from the relator, and afterwards this levy on. the personalty (if it can be called a levy, no possession being taken) was released as to all except the corn, thus-leaving the attachment only against the land and the
One of the questions presented, as will be seen from the foregoing, in connection with the petition upon which the cause was tried, is whether the measure of damages by the seizure and sale of the corn is the value of the homestead alleged to have been lost by reason of being disabled from paying off the incumbrance upon it resulting from not being able to get money on the corn, or is the measure of such damage merely the value of the corn? We are clearly of the opinion that the latter is the true measure of damages. The proximate injury is the loss of the corn. What relator might have done with the corn is conjectural; what he might have done with the money if he had sold the corn is conjectural. The only thing about the matter sufficiently, definite to ba,se legal results upon is, that he lost corn of a certain value, and that value he should recovei’, unless prevented by considerations disclosed further on.
But it may be proper to consider this question as presenting a different phase ; that is, -that the petition is not for the loss of the homestead caused by the levy; but, rather, that a loss of the homestead was then (at the
But can we consider the sale of the homestead a loss of it? Was the sale of it under a power given by relator to pay his debt a loss in the sense of legal damage? Was the liability to sell an impending loss ? The sale of the homestead under a deed of trust was but the execution of a power that relator had given when he executed it. Does it represent a loss or injury? Weneed not pass on these questions for the reason that the land brought its f ull value at such sale as was conceded by relator at the trial. If the proceeds of the sale were more than the mortgage, relator would have received the benefits of the surplus. Where then is there any resulting damage to relator by reason of the sale of the homestead ? Conceding the levy prevented relator from raising money with which to prevent the sale, yet that sale sacrificed nothing; it returned full value for the thing sold. Instruction, numbered 3, given for relator, will illustrate the weakness of his cause in this respect. The jury are there told that if there was a sale under the deed of trust which could have been prevented but for the attachment, they should assess as damages what sum the real estate and corn thereon were actually worth over and above the amount of the deed of trust
We have interpreted the petition as asserting a cause of action for causing a loss of the homestead only. Such seems to be its proper interpretation, and so it is treated by relator’s counsel as disclosed by their statement of the “questions involved in the case.” This being so, instruction, numbered 2, should not have been given for plaintiff. It authorized a recovery if the attachment was levied upon exempt personal property regardless of what effect such levy had as occasioning the loss of the homestead. The instruction is faulty in another respect. It asserts that it 'was the duty of the sheriff before levying the attachment to apprise relator of his rights under the exemption law. Such is the statutory duty of the sheriff in levying an execution, but not attachment. The duty is statutory and finds its warrant only by the statute, and should not be extended to cases not fairly within the terms of the statute. Under the statute of 1865 it was perhaps the official duty in either case, but the terms of the revision of 1879 limit that duty to executions. Such was the view taken by Judge Thompson in State v. Mason, 15 Mo. App. 141.
We think the circuit court of Bates county had jurisdiction under Judge Sherwood’s dissenting opinion in Fields v. Maloney, 78 Mo. 172, adopted in Stearns v. Railroad, 94 Mo. 317.
The judgment with the concurrence of all is reversed.
Rehearing
— The declarations and announcements made by plaintiff’s agent at the trustee’s sale were sufficient to prevent his recovering any damage which may have accrued to him by reason of a sacrifice of the homestead caused by such declarations. In keeping or recognition of the justness of this, plaintiff at the trial, when defendants were beginning to prove such declarations, conceded that he did not claim that the land brought less than its value at the sale.- This does not appear as mere clerical lapse made in transcribing the bill of exceptions. It is a distinct and emphatic disclaimer ; and, as we must accept the record as absolute verity, we cannot ignore it.
It is, however, insisted that the plaintiff is entitled to nominal damages, at least, for the alleged wrongful levy upon his homestead. Whether an officer who levies a writ of attachment upon land which is specifically and distinctly his homestead, and nothing more, is liable for the mere levy we need not say, as such is not the question before us. The case here conceded that the land attached was more than a homestead. It comprised one hundred and sixty acres of land worth at least double the statutory value of a homestead. It is true there were incumbrances shown, which, when allowed, reduced plaintiff’s interest to less than the statutory value. But these were matters, conceding that they were known to the officer, with which he could not concern himself at the time of the levy of the attachment. It is true that by the provisions of sections 5436 and 5437, Revised Statutes, 1889, the sheriff has some duties to perform at the time, or perhaps after, he shall levy an execution. These sections, however, do not apply to writs of attachment, which go out long before execution, and where it is often inexpedient to enter into investiga tions and proceedings demanded by said sections. We are, therefore, of the opinion that for the mere levy of
It is contended, also, that nominal damages should at least be allowed for the levy on exempt personal property, notwithstanding it may have been returned to plaintiff. The petition, however, is not based on a wrongful levy on personal property. It is true it charges a levy on such property as well as on the homestead, but these allegations are merely preliminary to a statement of what the action is for. This is not a suit in trespass. It is not for a wrongful levy and seizure of property, but it is for the loss of a homestead by a sale under a deed of trust which plaintiff was disabled from preventing by reason of these levies. The action is not bottomed on the trespass. N o action is stated for the levy as such; the action is for the loss of the homestead. The case stated in the petition is this: Plaintiff had a homestead upon which he had placed an incumbrance ; he also had personal property which was exempt from attachment. He would have been able to discharge the mortgage on the homestead by utilizing it and the personalty to raise funds wherewith to pay the mortgage, but for the wrongful levy made by defendant. That in consequence of the wrongful levy he was unable to utilize the property, and the mortgage was foreclosed whereby he lost his homestead. The grievance complained of is the loss of the homestead by a sale under the mortgage which the levy rendered him powerless to prevent, and for such loss he asks damage. Therefore, as we have seen that no damages accrued by reason of the sale of the homestead, none should be allowed for the levies.
Counsel have presented plaintiff’s case to us with much force, but we are at a loss to discover a just ground for recovery on the law or the fact. Indeed, after a careful scrutiny of the evidence as it has been
The judgment with the concurrence of the other judges will be reversed.'