39 Minn. 102 | Minn. | 1888
Action in replevin to recover a span of horses. Both parties claim through one Geibenhain; the defendant under a mortgage executed to Glynn & Robinson, July 8,1886, and filed the next day; the plaintiff under a mortgage executed August 11, 1886, and filed the same day. The property remained in the possession of Geibenhain, the mortgagor, until December 18, 1886, when it was sold under the first mortgage, and purchased at the sale by one Jonas, who afterwards sold and delivered it to defendant. Both mortgages were executed in good faith and for a valuable consideration. When plaintiff’s mortgage was executed, he had no actual notice of
2. The complaint alleges that the value of the use of the property during the time it was in defendant’s possession was the sum of $60, and that plaintiff had been damaged in that sum by the unlawful detention. Plaintiff introduced no evidence on the subject, but defendant himself proved that the use of a team was worth from four to five dollars per day. If this was enough to make out a case for plaintiff to entitle him to recover such damages, the evidence would have been just as available to him as if introduced by himself. We have held that the owner of property who is entitled to its use may recover the value of such use as special damages for its detention. Ferguson v. Hogan, 25 Minn. 135. But this applies only where the party has the right to the use. Wells, Repl. § 580; McArthur v. Howett, 72 Ill. 358. In this case the plaintiff was a mere mortgagee, whose mortgage had not been foreclosed, and in which there had been no default until the date of the commencement of the action. As mortgagee, he had the legal title, and, after default, the right to the possession of the property, but only for the purpose of foreclosure or sale under the
3. The complaint alleged the value of the property to be $350. This was put in issue by the denial in the answer. German-American Bank v. White, 38 Minn. 471, (38 N. W. Rep. 361.) No evidence was introduced on the subject, and hence the finding of the court that the value of the property was $350 is unsupported by the testimony. But the right to an alternative judgment for the value, in case the property itself cannot be obtained, is exclusively for the benefit of plaintiff, which he may waive if he chooses. Stevens v. McMillin, 37 Minn. 509, (35 N. W. Rep. 372;) Morrison v. Austin, 14 Wis. 601. If, therefore, plaintiff will remit his damages for the use of the property, and waive his right to an alternative judgment for its value, and consent to take judgment merely for the return of the possession, a new trial will not be necessary. Ward v. Anderberg, 36 Minn. 300, (30 N. W. Rep. 890.) The cause is therefore remanded, with instructions to the court below to grant a new trial, unless plaintiff will remit the damages for the detention of the property, and waive any judgment in the alternative for its value, and consent to take judgment merely for the' return of the property and costs of suit; but, if he files such release and waiver, then to enter judgment in his favor on the findings for the return of the possession and for costs.
Ordered accordingly.