Taylor v. Hines, 31 Mo. App. 622

31 Mo. App. 622 | Mo. Ct. App. | 1888

Ellison, J.

A reference to the statement in this case will discover that the plaintiffs were second mortgagees of a lot of personal property which defendant wrongfully attached; and that such attachment was determined to be wrongful on the separate interpleas of plaintiffs and the first mortgagees. That the proceeds of the property while under the attachment, and by reason of the attachment, was diminished to such an extent that plaintiffs are not able to make their debts. Under such state of case, I have no doubt of plaintiffs’ right to recover.

Plaintiffs, as second mortgagees, were entitled to the property remaining after satisfaction of the first mortgage and when defendant wrongfully attached all the property, destroying such portion thereof as to interfere with plaintiffs’ security, it is quite apparent that he rendered himself liable to plaintiffs at least to the extent of their loss he thus wrongfully brought about. By some courts it is held, the liability extends to the full value of the property though sufficient remain out of which to make the mortgage debt. Of this we need not express an opinion.

That the property had been reduced to the possession of the first mortgagees under the terms of their mortgage, did not destroy or affect the right of the second mortgagees to this action. The action is not for an injury to the possession, but to the substance of plaintiffs’ security. The petition states the actual facts showing an injury to plaintiffs’ security. It states a cause of action. Gooding v. Shea, 103 Mass. 360; Searle v. Sawyer, 127 Mass. 491, 493, and cases cited; Worthington v. Hanna, 23 Mich. 530.

It is contended that the judgment on the interplea is a bar to this action. I think not. It was ruled in Clark v. Brott, 71 Mo. 473, that a successful inter-pleader could, notwithstanding his in ter plea, sue the officer levying the attachment, for the trespass. And in Perrin v. Clafflin, 11 Mo. 13, the plaintiff, after a successful interplea, sued Clafflin who was plaintiff in the attachment writ which had been levied upon his goods, the court holding Clafflin liable to such action. So, if in this interplea plaintiffs had recovered the goods themselves the cases just cited would be direct authority for this action. The fact that the recovery is for the proceeds of the property cannot alter the case. The judgment itself shows a large portion of the mortgaged property was used in expenses attending the wrongful attachment and that plaintiffs’ claims were not satisfied.

If it be conceded that the first mortgagee sold the portion of the mortgaged property turned back to him, at a sacrifice, and that plaintiffs knew of such sale, I am not able to see how it can relieve the wrongful act of defendant in destroying the mortgaged property so as to diminish plaintiffs’ security. ,

The judgment will be reversed and the cause remanded.

Hall, J., concurs; Philips, P. J.. having been of counsel, not sitting