Street v. Sinclair, 71 Ala. 110

Street v. Sinclair

71 Ala. 110 | Ala. | 1881

Lead Opinion

SOMERYILLE, J.

This is an action of trespass by a mortgagor against a mortgagee, for entering the premises of the plaintiff and carrying away certain personal property, a horse and a mule, conveyed by the mortgage. The taking was done by the mortgagee’s agents, who are jointly sued with him in this case, and, in point of time, the asportation occurred after the law-day of the mortgage.

It is true that a mortgagee maybe liable in trespass or trover to a mortgagor 'for wrongfully disturbing the latter’s possession. The question is, under what circumstances will such disturbance be considered wrongful, where an express power is conferred by the mortgage itself authorizi/ng the mortgagee, or his agent, to take possession of the mortgaged property — for such is this case. Upon default, it is plain, that the title to the property at .law became vested absolutely in the mortgagee, the only interest remaining in the mortgagor being a mere equity of redemption. Tire power to take possession and to sell is a power coupled with an interest, creating by contract a license in favor of the grantee which becomes irrevocable without his consent. It is an essential part of the consideration of the mortgage, and it can not, either in law or in. good faith, be revoked by the grantor without mutual consent. To abrogate such a power would be to seriously impair the obligation of the contract. Richer v. Kelly, 10 Amer. Dec. 41, note. It, furthermore, carries with it every right reasonably necessary to its execution. Hence, it has been often adjudged, that where the owner of *115land sells goods situated on the premises to the defendant, a license to enter and take them is implied by the contract of sale. 2 Greenl. Ev. § 627; Nettleton v. Sikes, 8 Metc. 34. If it was necessary, therefore, to enter the premises of the mortgagor in order to reduce the property to possession and execute the power of sale, this the mortgagee, or his agent, could do in a peaceable and lawful manner without becoming a trespasser, unless a distinction could be made where he had been forbidden originally to enter .the premises under reasonable apprehension of a breach of the peace. But on this point we express no opinion.-Code, § 4419. It is said in Jones on Chattel Mortgages: “To an action of trespass by the mortgagor against the mortgagee for entering the mortgagor’s premises and carrying away the mortgaged chattels, it. is a good defense that the mortgage had been forfeited.”-§ 434. The principle is correctly stated, we think, at least as applicable to cases where the mortgage contains a power of sale vesting in the mortgagee an irrevocable license to enter and take possession on default. The precise point was so adjudged by the Supreme Court of Wisconsin, in Nichols v. Webster, 1 Chand. (Wis.) 203, and by the Supreme Court of Massachusetts, in McNeal v. Emerson, 15 Gray, 384. See, also, Herman on Chat. Mortg. § 96; Satterwhite v. Kennedy, 3 Strob. 457; London Co. v. Drake, 6 C. B. (N. S.) 798; Sterling v. Warden, (51 N. H. 217) 12 Amer. Rep. 80; 1 Waterman on Trespass, § 167. The case of Thornton v. Cochran, 51 Ala. 415, was clearly based upon the fact that the mortgagee carried with him a deputy sheriff, whom he had indemnified by bond, to “ levy ” upon the mortgaged property, and this was construed into a taking by threats, or constructive force.

The seizure of the property by the mortgagee, in such a case, should of course be effected without force or violence. The same rule must govern as in cases of recaption. It must not be perpetrated “in a riotous manner, or attended with a breach of the peace.” — 3 Black. Com. 4; Bobb v. Bosworth, 12 Amer. Dec. 273. Subject to this limitation, the owner of personal property, wrongfully withheld from him, may have redress by his own act without resorting to the delay of litigation. But he proceeds at his own peril if he commit the slightest assault, or other breach of the public peace, for, if individuals were thus allowed to redress their own private injuries, the peace of society and good order of government would cease.

The court erred, in our opinion, iu charging the jury that the power of. sale in the mortgage, after default, would confer no right on the defendants to take possession of the mortgaged property, against the will or without the consent of the mortgagor. ' '

The rule as to the measure of damages in cases of this nature *116is well settled. For a mere wrongful taking, unaccompanied with any acts of wantonness, malice or gross negligence, the measure of damages would be the val/ae of the plaintiff’’s interest in the property at the time of the trespass, and not the value of the property itself. The mortgage debt, or other lien, held on the property by the mortgagee, or lienee, must-be deducted by way of recoupment.-Bird v. Womack, 69 Ala. 390; Waterman on Tresp. § 623; Jones on Chat. Mortg. § 437; Blodgett v. Blodgett, 48 Vt. 32. The appellants, under this view of the law, should have been permitted not only to introduce the mortgage in evidence, but also to prove the amount of the mortgage debt remaining unpaid.

The principal who employs an agent is not responsible for an unauthorized trespass committed by the latter. He may, however, become liable by a ratification and adoption of an un-indictable trespass committed in his name and for hi's benefit, if he have full knowledge of its tortious nature.-1 Waterman on Trespass, § 28. If it had been shown that the letter from plaintiff to the defendant Street, which was carried to the latter by Machen, contained a correct vei'sion of the alleged trespass, and its contents were presumptively known to Street, this would be competent as tending to prove the fact of ratification. But the letter itself should have been produced, or else a proper predicate laid for secondary evidence of its contents.

The evidence introduced to show a special damage to plaintiff in his farming operations was irrelevant. No special damages are laid in the complaint, and, if they were, that sought to be proved would be too remote, speculative and contingent to be recovered.-Pollock v. Gantt, 69 Ala. 373; Jones’ Chat. Mortg. § 437; Burton v. Holley, 29 Ala. 318.

The statement of the witness, Davenport, that the plaintiff consented to the taking of the mortgaged property by defendants was the assertion of a fact and not of a mere opinion. The nature of the consent could have been elicited on cross-examination.

It is competent always for a witness to give any pertinent reason for his accurate recollection of a fact to which he testifies. He may, therefore, state that he had consulted counsel in reference to a matter of disputation in evidence, but he should not be permitted to testify as to what the advice was.-Adams v. Robinson, 65 Ala. 586.

We can not see from the bill of exceptions that there is any evidence in this case supporting the charges of the court on the subject of exemplary damages. These charges were, for this reason, calculated to mislead the jury.

It was error to charge the jury that “ if the weight of evidence is in favor of the plaintiff, he should recover damages.” This *117was an invasion of the province of the jury. They are .not ■compelled to find according to the mere preponderance of the evidence, unless it produces a reasonable conviction or satisfaction of the mind.-Wilcox v. Henderson, 64 Ala. 535; Mays v. Williams, 27 Ala. 267.

The judgment of the Circuit Court must be reversed and the cause remanded.

Dissenting Opinion

STONE, J.

I dissent from the opinion of the majority of the cotut, and think the rule declared will naturally lead to disorder and violence. Public peace is of more importance than the possession of a chattel, even by the.rightful owner. In my opinion a mortgagee has no right to go on the premises of .another, and there, without the consent, and against the pronounced objection of the mortgagor, take and carry away the chattel, even though the law day of the mortgage is passed, and the mortgage debt remains unpaid. I call such proceeding force; such force, as in the case of Bobb v. Bosworth, 12 Amer. Dec. 273, S. C. Lit. Sel. Cases, 81, it was declared authorized resistance by force. A seizure of one’s own property can not, at one and the same time, be a lawful seizure, and jet authorize resistance by force. The two lights are incompatible. A taking of one’s own property without process can be justified only when the circumstances are such that resistance to such seizure would be a tort and a trespass. This I understand to be the true rule. Such was, in substance, the rule declared in Thornton v. Cochran, 51 Ala. 415. The sylabus of that opinion is made part of the text in Wait’s Actions and Def. vol. 6, 97. See, also, same vol. 120; Huppert v. Morrison, 27 Wisc. 365. I think my brothers have departed entirely from the principle declared in Thornton v. Cochran, supra. See, also, Turnley v. Hanna, 67 Ala. 101; Cooley on Torts, 168; Churchill v. Hulbert, 110 Mass. 42; S. C. 14 Amer. Rep. 578; 1 Hil. on Torts, 204.