Illinois Central Railroad Co. v. Hawkins

• Decision Date: 23 January 1888
• Citation: 3 So. 410,65 Miss. 200
• Court: Mississippi Supreme Court
• Parties: ILLINOIS CENTRAL RAILROAD COMPANY v. RANDLE HAWKINS

3 So. 410

65 Miss. 200

ILLINOIS CENTRAL RAILROAD COMPANY v. RANDLE HAWKINS

Supreme Court of Mississippi

January 23, 1888

APPEAL from the Circuit Court of Lafayette County, HON. W. S FEATHERSTON, Judge.

This is an action brought by Randle Hawkins against the Illinois Central Railroad Company to recover damages for the killing of a mule.

The mule was shown to have been in possession of plaintiff at the time it was killed.

On the trial the defendant offered in evidence an unsatisfied deed of trust on this mule, executed by plaintiff in favor of one Roach, trustee, for the benefit of one McLeod, the day for the performance of the conditions of which had passed. The court refused to allow the deed to be received in evidence. The jury found for the plaintiff and there was judgment accordingly. The defendant appealed.

Affirmed.

W. P. &amp J. B. Harris, for the appellant.

Unless the court will hold upon the facts stated in this case, that a recovery by the mortgagor will be a complete bar to a subsequent action by the mortgagee, we fail to see upon what principle the mortgage was excluded from the jury. Will the court apply the doctrine, nemo vis vexaria, to this case?

H. A Barr, on the same side.

The legal effect and operation of a mortgage of personal property, after the condition is forfeited, is to invest the mortgagee with an absolute title to the mortgaged property, and the legal result is the same, whether it is a mortgage or deed of trust. Thornhill v. Gilmer, 4 Smedes & Marshall, 163.

The mortgagor in possession may sue in trespass; and whilst it is true that a mere stranger cannot question his right of possession, and put him upon proof of his title, still it is true that he cannot recover beyond his right. If he has only possession, without any title to the property, he can recover to the extent of the injury to his possession, but not for an injury to the property.

A tortious act is not an entirety as to the persons affected by it. It may affect several persons and do an injury to each. If one person has the possession and another the reversionary title, each may bring a separate and independent action, and the damages to each will be such as are appropriate to the terms by which he holds, and such as result from the injury he has sustained.

3 Sutherland on Damages, 365; Gilbert v. Kennedy, 22 Mich. 5.

Sullivan & Whitfield, for the appellee.

The Court will observe, that the only error complained of in this case, is, that the Court below excluded the trust deed, by which it was sought to show that as between the grantor in that instrument and the Rail Road Company the title to the property injured was not in the grantor.

This was right, on the authority of the former decision of the Supreme Court of this State, as announced in the case of Loeb v. Chicago R. R. etc., 60 Miss. 933, and in the cases there cited on page 938.

It was right on the Statute, if the Statute means anything. See Section 1204, Code of 1880.

OPINION

COOPER, C. J.

The single question presented in this case is whether a wrong doer who has destroyed personal property which had been mortgaged by the owner may, when sued by the owner, diminish the amount of his recovery by showing an outstanding forfeited mortgage, the mortgagor having remained in possession after breach of the condition of the mortgage.

The court below excluded the evidence when offered, and we approve its ruling.

In most of the states a...