Bird v. Womack , 69 Ala. 390 ( 1881 )

SOMERVILLE, J.

Where, in an action of trespass or trover, the property sued for has been returned to the possession of the owner, this fact is available to the defendant in mitigation of damages, but not in bar of the action. — Ewing v. Blount, 20 Ala. 694; 2 Greenl. Ev. § 635.

So where the defendant, in his own right, holds a mortgage or other lien of any kind on the property, he is entitled to have the amount so secured deducted by way of recoupment. — Sedgwick on Dam. 6th Ed. p. 600 (*482), and note (2). And it is also settled that where the property has been appropriated ,to the' plaintiff’s usé by Ms consent, express or implied, this may be shown in mitigation of the damages otherwise recoverable! Field on Dam. § 785; 2 Greenl. Ev. § 635a. And while there is reputable authority for-the doctriné that the defendant’s consent is not necessary in such cases (Irish v. Cloyes, 8 Verm. R. 30), we think the better and sounder rule to be, that, without such consent, at least one that is implied in fact or law, it avails nothing to the mere trespasser that he has himself applied the goods illegally seized or converted to the owner’s use in the absence of all authority. It has been held that such consent may be implied where the property has been seized in the hands of the trespasser and sold under legal process against the owner, and this is, perhaps, the correct principle. — Squire v. Hollenbeck, 9 Pick. 551; 2 Greenl. Ev. § 635a, note (5).

In Higgins v. Whitney, 24 Wend. 379, 381, it was said by Bronson, J.: “ One who has wrongfully taken property can not mitigate damages by showing that he has himself applied the property to the owner’s use without his consent. But when the property has been so applied, by the act of a third person and the operation of lam, that fact should be taken into, the account in estimating the plaintiff’s damages.”

In McMichael v. Mason, 13 Penn. St. R. 215, where a sheriff was sued for wrongfully levying on and selling the plain tiff’s goods, it was held that he could not be permitted to prove in mitigation of damages that he had applied the proceeds of sale to the payment of plaintiff’s debt, due for freight on the goods and a Men on them. “ The sheriff,” say the court, “ being a trespasser from the beginning, could gain no right from his wrong — not even a right to pay the plaintiff’s debt without request.” A similar ruling was declared by the Supreme Court -of Pennsylvania in Dallam v. Fitler, 6 Watts & Serg. 323.

We believe these decisions not only to better harmonize with the reason of the law, but also to accord with principles supporting a sounder public policy. If defendants, generally, were permitted to invoke such a defense, they would be encouraged in pragmatical interferences with the property of third persons, and, perhaps, to such an extent as frequently to endanger the public peace. It is carrying the rule sufficiently far to accqrd this right of recoupment to parties who hold liens on property, which is the subject of conversion or trespass, and we are not inclined to extend its operation further, despite the hardship of the principle in many cases. ILard cases, as has been aptly said, too frequently prove to be the quicksands of the law.

It can not be objected that the plaintiff is thus permitted to indirectly reap the benefit of double damages. In eases of trespass, exact compensation is not always the rule. In assessing damages, for example, whether to person or property, for an injury resulting from a defendant’s negligent or wrongful act, it can not avail him any thing that the plaintiff has recovered compensation from an insurance company which had taken a risk against accident or fire upon the one or the other. — Althorf v. Wolfe, 22 N. Y. (8 Smith), 355; Yates v. Whyte, 4 Bing. (N. C.) 272; Weber v. R. R. Co., 10 Amer. Rep. 253.

The Circuit Court did not err in refusing to admit in evidence the mortgage executed by appellant to Bell & Moore, and its judgment is affirmed.