No. 8581 | Minn. | Apr 20, 1894
The plaintiff brought an action of trover against the defendant for the conversion of certain personal property. The defendant, among other things, answered that one David Tozier held a mortgage on the property. The bill of exceptions states that upon the trial it appeared that the amount of this mortgage was the sum of $150, and that it was due and payable to Tozier at the time of the conversion by defendant. The court below held that, as between plaintiff and defendant, the existence of this mortgage was no defense, ordered a verdict for plaintiff, and left it to the jury to assess the amount of the damages; and, from an order denying a motion for a new trial, defendant appeals.
We are of the. opinion that the order appealed from should be affirmed. The plaintiff held the rights of the mortgagor, who was entitled to possession until the mortgagee saw fit to enforce the default in the mortgage. As between plaintiff and a wrongdoer who was a mere stranger to the mortgage, she was entitled to recover the full value of the property converted. The mortgagee did not interfere or make any claim against the defendant for the property or its proceeds, and the plaintiff was entitled to recover the full amount of these proceeds, and hold, as trustee, the amount due the mortgagee. Jellett v. St. Paul, M. & M. Ry. Co., 30 Minn. 265" court="Minn." date_filed="1883-03-07" href="https://app.midpage.ai/document/jellett-v-st-paul-minneapolis--manitoba-railway-co-7964205?utm_source=webapp" opinion_id="7964205">30 Minn. 265, (15 N. W. 237.)
Proof that the right of a third person is superior to that of the plaintiff is not sufficient unless it has the effect of disproving the right of plaintiff to possession, as between himself and defendant.
Although the loss of the mortgagor may be less than it would be if his title was not incumbered, still it is well-settled law that
The authorities on this point are cited in the note to Armory v. Delamire, 1 Smith, Lead. Cas. 374 (8th Ed. p. 679.)
Order affirmed.
(Opinion published 58 N.W. 831" court="Minn." date_filed="1894-04-20" href="https://app.midpage.ai/document/pioneer-savings--loan-co-v-fuller-7968323?utm_source=webapp" opinion_id="7968323">58 N. W. 831.)