Opinion
September Term, 1863
F. Byrne, counsel ex parte for the appellants.
W. Stanley submitted points for the respondent.
Certain positions respecting actions of this character are perfectly well established in this court, viz. (1.) That a mortgagor of chattels remaining in possession before default, under a clause entitling him to such position, like the one in this mortgage, has an interest in the property which is the subject of levy and sale on execution against such mortgagor. The seizure by the receiver was in the nature of a levy on execution so far as this case is concerned. (2.) That although the interest which passes to the purchaser at such sale is only such an interest as the mortgagor had, yet that the sheriff and the parties promoting the sale are not trespassers if the sale is in general terms, without any notice being taken of the existence of the mortgage. These points were involved in Hull v. Carnley, which was twice before this court, and were settled upon good deliberation. (1 Kern. 501; S.C. 17 N.Y. Rep. 202.) Goulet v. Asseler, ( 22 N.Y. Rep. 225,) reaffirms the doctrine in Hull v. Carnley, and applies it to a case precisely like the one before us. The complaint in that case and the one we are examining, seem to have been substantially identical. They set out the mortgage as the foundation of the plaintiff's title, and charge the defendants with the wrongful act of seizing the goods and selling them, and appropriating the proceeds to their own use. There is no mention made in this complaint of the legal process which the defendants had, authorizing them to take and sell the property, or any complaint of an abuse of the process of law. The grievance is not any malfeasance or misfeasance in the manner of the sale, but the complaints, both in this case and in that of Goulet v. Asseler, count on the seizure and sale as alone conferring the cause of action. There is a good deal of other language in this complaint, but nothing which qualifies that which I have stated. The last mentioned case cited seems to me a precise authority for reversing the judgment which we are reviewing. It may be added that this case was tried by the learned judge as though it was an action of trespass or trover. The defendants' counsel, after his main position that the action could not be sustained was overruled, sought to have the damages assessed upon the footing of an action on the case for an injury to the plaintiff's reversionary interest, by confining the damages to the loss he had suffered by the dispersion of the property among the several purchasers; but the judge refused to charge the jury to that effect, and finally laid down the rule of damages precisely as though the plaintiff had a present right of possession, and the action had been trespass or trover for an immediate injury to that possession. In any view that can be taken of the case, this was an erroneous direction. If the action had been case, for an injury to the plaintiff's reversionary interest, which is, upon all the cases, the only action that could be maintained, the rule of damages indicated in the request would have been the true one. For this error in the charge I am of opinion that this judgment can not be sustained. I am of opinion that the exceptions based upon the supposed assent by the plaintiff to the sale and upon the omission to refile the mortgage, were not well taken.
It remains only to mention, that upon the former appeal in this case, the judgment was reversed solely because there had been a mistrial in the Superior Court, and that no other point was adjudged or attempted to be. This is explicitly stated in the report. Some of the judges were of opinion that where a sale on execution against a mortgagor (the instrument containing the provision found in the one before us) has been made, the mortgagee may maintain an action in the nature of trespass on the case, for an injury to his interest as a reversioner. I did not participate in that view, as may be seen from my observation in that case, ( 23 N.Y. Rep. 539.) I forbear to enlarge upon that question because the present case does not present it, and because I have already sufficiently explained my views upon that question, in the cases to which I have referred. I am in favor of reversing this judgment.
WRIGHT, JOHNSON, HOGEBOOM and INGRAHAM, Justices, concurred. MULLIN and DAVIES, Justices, were for affirmance. SELDEN, J. was not prepared to vote.
Judgment affirmed.