Lackland v. Owings
| Decision Date | 31 March 1865 |
| Citation | 35 Mo. 506 |
| Parties | WM. H. LACKLAND, ADM'R OF ALBERT S. REGOR, Respondent, v. JOSHUA W. OWINGS, Appellant. |
| Court | Missouri Supreme Court |
Appeal from St. Louis Circuit Court.
Van Waggoner & Hamilton, for appellant.
The principal question is as to the measure of compensation under such circumstances. In the instructions given by the respondent the court ruled that notwithstanding the goods were tendered back to him, still he was entitled to receive their full value with interest. This, we think, was erroneous.
It is not necessary to question the general principle which controlled the action of the court below, that a party whose property has been illegally taken under an execution against another person, may refuse to receive it when tendered, and insist on his right to recover its value, as well as damages for the taking. The statute, however, introduces an additional element into the case, growing out of the claim made. It assumes that there has been a seizure of the property, and expressly authorizes the sheriff, when the execution creditor yields to the claimant by declining to give the bond necessary to secure the enforcement of the writ, to refuse to complete the execution by selling and appropriating the proceeds to the debt. The Legislature had two objects in view, the principal of which was protection to the officer, and the other was to enable any person whose property had been wrongfully levied upon, to be restored to the possession, in specie, in a summary manner, without trial of his right as under the general law, or to procure indemnity if, after claim duly made, the officer should, nevertheless, proceed to execute the writ. No special direction to the officer was necessary, requiring him to relinquish the levy and surrender the property. That results from the very nature and object of the proceeding. The statute supposes that as the claimant has claimed the property, he will not refuse to receive it when offered to be restored to him. After the offer to return, the custody of the law is virtually at an end. By his own act, the claimant places the property beyond the reach of the creditor. The execution, as to the property levied upon, is not merely superseded, but is, to all practical purposes, countermanded by the statute, through the agency of the claimant himself, who sets the officer in motion for that purpose. The party injured is not bound to resort to the statutory remedy; but if he does so, he ought to be concluded by the necessary consequences, and is not entitled to damages arising from his own perverseness or obstinacy. The just and reasonable course in such a case is to deduct from the damages sustained the value of the property as it was when tendered, less the cost and expense of returning it.
Lackland, Cline & Jamison, for respondent.
In our opinion the only legal question raised by the instructions, worthy the attention of this court, is, can the owner of goods that are seized and carried away by a trespasser, refuse to receive them back again, when tendered by the wrong-doer, and maintain his suit for the value? Or, in other words, can he waive the goods, and sue for and recover a money satisfaction?
The instructions raise this proposition, and, if it can be done, then there is no error in them. The local statute applicable to St. Louis county, passed for the benefit of sheriffs and marshals, does not, in anywise, change or modify the liability of the party who directs the sheriff or marshal to levy upon the property of a third party, and hence the parties stand upon their common law rights, and the defendant became liable as a trespasser to the plaintiff, occasioned by the seizure of his goods, and it was not in his power to divest himself of any part of that liability, by tendering back the...
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