Dahill v. Booker

• Citation: 5 N.E. 496,140 Mass. 308
• Parties: John F. Dahill v. William Booker
• Decision Date: 30 November 1885
• Court: United States State Supreme Judicial Court of Massachusetts

140 Mass. 308

5 N.E. 496

John F. Dahill v. William Booker

Supreme Judicial Court of Massachusetts

November 30, 1885

Argued September 17, 1885

Franklin.

Exceptions sustained.

J. A Aiken, for the defendant.

F. L Greene, for the plaintiff.

Field C. Allen, & Gardner, JJ., absent. Holmes, J.

OPINION

Holmes J.

This was an action of tort in the nature of trover. The defendant put in evidence to disprove the conversion. It also appeared that one Wheeler, a mortgagee of the goods, took possession of them, nearly a year and a half after this action was begun, for breach of condition, and transferred all but certain articles to the defendant to pay him for storage of the same for the previous year. Wheeler did not file notice in the town clerk's office of his intention to foreclose until some time afterwards, and within sixty days of the trial, so that the foreclosure was not then complete. "The defendant asked the court to instruct the jury that the taking of the property by Wheeler for breach of the condition of his mortgage was an application of the property for the benefit of the plaintiff, and should be considered by the jury in mitigation of damages; and that the plaintiff was entitled to damages only for the taking of the property and its detention up to the time it was taken by Wheeler for breach of condition of the mortgage. The court declined so to rule;" and the defendant excepted.

The instructions requested embodied more or less accurately familiar propositions of law, and, unless the transfer from Wheeler to the defendant took the case out of their operation, they should have been given in substance. For apart from that transfer, the property necessarily came back to the plaintiff, or was applied to his use, as the result of Wheeler's taking. See Kaley v. Shed, 10 Met. 317. If the plaintiff redeemed, he regained his possession, which, of course, would go in mitigation of damages, although after action brought. See Moon v. Raphael, 2 Bing. N. C. 310; Hanmer v. Wilsey, 17 Wend. 91. On the other hand, if the mortgage was foreclosed, the property went in satisfaction of the plaintiff's debt, and thus was applied to his use by his consent irrevocably given in the mortgage. Pierce v. Benjamin, 14 Pick. 356, 361. Squire v. Hollenbeck, 9 Pick. 551. See Higgins v. Whitney, 24 Wend. 379. It was not suggested that there was any diminution in the value of the property between the times of the conversion and of Wheeler's taking, so that we need not consider whether the second ruling requested would have been quite accurate in form, if that question had arisen. The sum paid to regain possession by redeeming is not to be treated as such a diminution. The liability to pay this sum was independent of the conversion, and was not like a reward paid to recover the goods in consequence of the defendant's conduct, as in Greenfield Bank v. Leavitt , 17 Pick. 1. See Cutting v. Grand Trunk Railway, 13 Allen 381, 388.

The case is not affected by the transfer from Wheeler to the defendant. The plaintiff's possession and right of possession were put an end to by the breach of condition and Wheeler's seizure. Under such circumstances, it is settled that a mortgagor cannot maintain trover for a subsequent sale of all the mortgaged goods together by the mortgagee. Such a sale does not of itself import a repudiation of the mortgage, or determine the title under it. Landon v. Emmons, 97 Mass. 37. Wells v. Connable, 138 Mass. 513. See further Halliday v. Holgate, L. R. 3 Ex. 299; Donald v. Suckling, L. R. 1 Q.B. 585, 617; Mulliner v. Florence, 3 Q.B. D. 484. It is true that, in this case, the goods seem to have been separated, and a portion retained by the mortgagee, although the distinction left open in Landon v. Emmons was not adverted to in argument, and does not appear to have been before the mind of the parties, so that the bill of exceptions is somewhat obscure upon this point. But we do not think that this fact, if it be a fact, without more, can change the result. Such a separation may make the redemption more difficult when the plaintiff desires to redeem, which he does not seem to have done in this case. But we think that it would be going too far to say that this, in and of itself, necessarily amounted to a repudiation of the mortgage and mortgage title, if indeed it is possible to repudiate a vested legal title in like manner as a simple bailment may be repudiated, it is said, by acts inconsistent with its terms. 2 Roll. Abr. 556, pl. 9. Commonwealth v. James, 1 Pick. 375, 386.

This is not a case where, the goods being worth more than the mortgage debt, a foreclosure sale purporting to be under...