Dunlap v. Steele , 80 Ala. 424 ( 1885 )

CLOPTON, J.

The gist of the action of trespass for injuries done to personal property is the damage to the possession ; and to entitle a plaintiff to maintain the action, he must have, at the time of the injury, actual possession, or title and right to immediate possession. The general rule in respect to mortgages is, if the mortgage contains no stipulation or reservation to the contrary, the mortgagee has the right to immediate possession at any time — constructive possession- — and may sustain an action for injury done to the property, though in actual possession of the mortgagor. But, if the mortgage contains a stipulation or reservation, express or implied, that the mortgagor shall retain possession and enjoyment until default, or until some contingency or event happens in the future, the mortgagee’s right is in reversion ; and he can not maintain trespass for an injury to the property committed during the period the mortgagor has the right to possession, and is in actual possession. — Boswell v. Carlisle, 70 Ala. 244.

The mortgage, under which plaintiffs derive title, contains a stipulation, that the mortgagees are authorized to take possession, and sell the property, should the mortgagor fail to pay the indebtedness at the time and in the manner provided, or should sell or'attempt to sell the property or any part thereof, or should move the same beyond the limits of the county, or should the property Toe levied v/pon, or taken possession of by any other person. The law day of the mortgage is November 1, 1881. In October preceding, the defendant sued out an attachment against the crops and the mare in controversy, as landlord, and caused it to bo levied on the property embraced in the mortgage. By the terms of the mortgage, the mortgagees designed to secure the vantage ground of possession, if litigation ensued with any other creditor of the mortgagor, or with any other person, wrongfully taking possession of the property. The right to immediate possession is simultaneous with the levy. The moment the right to possession accrues, by reason of a levy being made, the mortgagees may maintain trespass if the levy is forcible and unlawful, being regarded as having the constructive possession. — Nelson v. Bondurant, 26 Ala. 341; Welch v. Whittmore, 25 Me. 86. The instruction, requested by defendant, was properly refused.

The court affirmatively instructed the jury, that the plaintiffs were entitled to recover on the hypothesis, that the attachment sued out by the defendant was levied on the mare embraced in the mortgage, and that the mare was sold by the sheriff in the attachment suit. The mare was sold after the institution of the present suit; and the sale does not relate to the commencement of the suit, so as to constitute a right or cause of action at that time; though, if the levy was a trespass, the subsequent sale of the mare may be considered in estimating the damages. But irrespective of this, all the hypothetic facts stated in the charge may exist, and the defendant may not, necessarily, be guilty of a trespass. The bill of exceptions recites, that there was evidence tending to show, that in October, 1881, the defendant sued out an original attachment against the crops grown by the mortgagor during the current year, and against the mare, the attachment being, or purporting to be sued out for rent and advances furnished the mortgagor by the defendant as landlord. The trespass complained of is the levy upon and seizure of the mare under this attachment, and under it the defendant justifies. If the defendant was in fact the landlord of the mortgagor, and as such landlord advanced the mare, under the statute, to the mortgagor as his tenant, his lien on the mare for the advance is superior to the lien of the plaintiffs’ mortgage; and he had the statutory right to enforce the lien by the process of attachment, a statutory ground existing. — Code, §§ 3467, 3472. In such case neither the officer, who levied the attachment, nor the defendant, who caused it to be done, would be guilty of a trespass, though the mare were.in the actual possession of the mortgagees. The writ of attachment and the levy were offered in evidence to prove the alleged trespass, without restricting their effect as evidence. The recitals of the attachment showed, that it purported to be sued out by the defendant as landlord, for rent and advances. In the absence of contradictory evidence, the jury might have inferred the existence of the facts, which conferred on the defendant a superior lien. The charge invades the province of the jury, by withdrawing from their consideration material inferences, which they might have drawn from the evidence; and was improperly given.— Agee v. Mayer, 71 Ala. 88; Rice v. Watts, lb. 593.

The defendant having sued out the attachment against the mare, having had it levied, and the mare sold in the attachment proceedings, as the property of the mortgagor, will not be beard to deny his title as against the mortgagees. There is no error in not allowing the defendant, under the circumstances of this case, to prove that the mare was his property at the time the mortgage was given, and the attachment was sued out.

Reversed and remanded.