1 Stew. 576 | Ala. | 1828
delivered the opinion of the Court. It is certain that the process of the law will protect the officer who pursues it, but if he misuses or abu es it, that protection is taken from around him : notwithstanding, then, in this case, the original taking may have been lawful, if the defendant was guilty of a misfeasance, he thereby became a trespasser ab initio. A misfeasance is the improper performance of some act which might lawfully be done. The defendant here had a right to take and sell the property, but was bound to do it as directed by law. If, then, he sold without the legal advertisement, it was the improper performance of an act which ought have been lawfully done ; and he was, according to strict definition, guilty of a misfeasance. By this he was dismantled of his protection, and made a trespasser from the beginning. There can be no question but that he was li .-ble to the action of trespass. In such an action, the plaintiff must shew either an actual possession, or a general tight of property which would draw to it a constructive possession at the time of the trespass committed. Then, if trespass were the action, the objection that the officer’s having taken possession digested the property, would not avail. For though true to a certain extent, yet the misfeasance on his part would revest the property in the original holder, and the law would consider it as having been therefrom the beginning. Now, in an action of trover, as well as in trespass, the plaintiff must prove either actual possession at the time of conversion, or a right of property, which gives constructive possession. In these particulars, then, the actions resemble each other; and if in trespass the first taking by the officei, and his qualified property, would not interpose a bar by reason of his subsequent misfeasance, I cannot see why it should create the difficulty contended for in trover. The taking of the property tortiously constitutes a conversion, and the party injured may waive the trespass, and bring trover If, however, he,deliver the property himself, or the defendant by lawful means gains the posses-
The charge of the Court, however, is manifestly too broad in this, that it states that the sale by the defendant, without notice, did not change the right of property. We think that the sale, even though made without notice, would vest the property in the purchaser, though at the time of such sale, the plaintiff had such a right as would enable him to maintain this action for the conversion which was then committed. Besides, this charge had a direct tendency to induce the jury to give damages to the full value of the property, which we think in a case like this, where it was sold to pay his debt, should not have been recovered, but that he should have received a compensation for the diminution in price produced by the irregularity of the defendant, in not giving the proper notice. For this last error, therefore, the judgement must be reversed and the cause remanded.
1 cuitt.pi. i54.
