Goulet v. . Asseler

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 227 If the plaintiff has any legal remedy for the injury of which he complains, it is clear that that remedy has not been properly pursued in the present case, and that the judgment therein cannot be sustained consistently with the well established principles of the common law, and the repeated decisions of this court. The difficulty in the case, and the error of the court below, will be most readily seen and appreciated by referring to some of the distinctions between those forms of action which the Code has abolished. It can hardly be claimed that, prior to the Code, an action of trespass or trover could have been maintained, either against the officer or the plaintiff in the execution, under the circumstances here disclosed. The case would have fallen directly within the principles of the case of Gordon v. Harper (7 Term R., 9), and the subsequent cases of that class which have never been departed from, either in England or in this country. If any action would have lain before the Code, it could only have been an action founded upon the special circumstances of the case, setting forth the injury to the contingent interest of the plaintiff in the property, and claiming damages for such injury. While, however, in such an action, the plaintiff would have avoided the effect of the technical rule that, in order to recover in trespass or trover, he must show that he had either the actual possession or the right of the possession at the time of the *Page 228 alleged taking or conversion, he also, supposing that the action could have been maintained, would have imposed upon himself the necessity of proving, specifically, the damages which he had sustained. In trespass and trover, before the Code, the plaintiff recovered, if at all, upon the ground that he was the owner of the property in controversy. The measure of damages, therefore, in all such cases, was the value of the property taken or converted. Although it appeared that the plaintiff held the title as mere security for a debt, and that his debtor was abundantly able to pay, so that his actual loss was nothing, his recovery, in cases where he recovered at all, was nevertheless for the full value of the property, provided that did not exceed the amount of his lien. In a special action on the case, on the contrary, the plaintiff could, under no circumstances, recover more than the damages shown to have been actually sustained. He must prove to what extent his security was impaired, by showing whether the debtor was or was not responsible, and whether or not it was still in his power to follow and enforce his lien against the property. Although the Code has abolished all distinction between the mere forms of action, and every action is now in form a special action on the case, yet actions vary in their nature, and there are intrinsic differences between them which no law can abolish. It is impossible to make an action for a direct aggression upon the plaintiff's rights by taking and disposing of his property, the same thing, in substance or in principle, as an action to recover for the consequential injury resulting from an improper interference with the property of another, in which he has a contingent or prospective interest. The mere formal differences between such actions are abolished. The substantial differences remain as before. The same proof, therefore, is required in each of these two kinds of actions as before the Code, and the same rule of damages applies. Hence, in an action in which the plaintiff establishes a right to recover, upon the ground that the defendant has wrongfully converted property to the possession of which the plaintiff was entitled at the time of the conversion, the proper measure of damages still *Page 229 is, the value of the property; while in an action in which the plaintiff recovers, if at all, upon the ground that the defendant has so conducted himself in the exercise of a legal right in respect to another's property, as unnecessarily and improperly to reduce the value of a lien, which the plaintiff could only enforce at some subsequent day, the damages must, of course, depend upon the extent to which that lien has been impaired. If we apply these principles to the present case, the error in the judgment under review becomes apparent. The complaint is, in substance, the same as a declaration in trover, under the former system of pleading. It is true, that it sets out the mortgage as well as the judgment and execution obtained by the defendants, and the proceedings under them; but the gist of each of the counts is, that the defendants have taken the property of the plaintiff, and converted and disposed thereof to their own use. The form of the complaint in this respect would be of no importance, provided the proof had been such as to entitle the plaintiff to the judgment rendered. This court will not reverse a judgment simply because the case made by the evidence varies from that set forth in the complaint, where, as in this case, no objection was taken on that account at the trial. If it appears that the proof was sufficient to entitle the successful party to the judgment actually given, such judgment will be sustained. Here, however, the proof could, at most, only authorize the plaintiff to recover the consequential damages resulting to the contingent interest under the mortgage; while the damages were assessed and the judgment rendered upon the assumption that he was the owner of the property and entitled to the immediate possession. The distinction taken by the Superior Court between this case and that of Hull v. Carnley (1 Kern., 501, and S.C.,17 N Y, 202), upon the ground that here the sale was in parcels and to different purchasers, is entirely insufficient to support the judgment. Even conceding this to have been wrongful, and a violation of duty on the part of the officer, still it could only entitle the plaintiff to recover damages for the injury to his lien, and not the entire value of the property. The *Page 230 objection that he had neither possession nor the right of possession at the time of the conversion, would not be removed. The judge, therefore, was clearly wrong, in directing the jury to assess the value of the property, without any proof as to the actual extent of the injury sustained. It is unnecessary to determine whether a recovery could be had upon any other principle in such a case. This question has never yet been presented to or passed upon by this court. It was held in Hull v. Carnley (supra), that property situated like that in this case was liable to levy and sale upon execution against the mortgagor; and that whether the sale was general without notice to the purchaser of the lien of the mortgagee, or was specially restricted to the right of the mortgagor subject to the lien, nothing but the interest of the latter would pass by the sale. It followed, that the mortgagee would, after default, have the same right to pursue and take the property, notwithstanding the sale, as if it had remained in the hands of the mortgagor; and inasmuch as it did not appear that there would have been any greater difficulty in enforcing the lien of the mortgage after the sale, than if the same had not occurred, the conclusion was inevitable that no injury was shown and no action would lie. The sheriff had a right to sell the interest of the mortgagor. The effect of the sale was to pass that interest, and nothing more. No rights of property, therefore, were violated. It is true, the sheriff was apprised of the lien at the time of the sale, and omitted to disclose it; but of what consequence is that, unless some one was injured by the omission? There would perhaps be a presumption of injury to the purchaser in such a case; for which an action would lie. It was held in Peto v.Blades (5 Taun., 656), that the law raises an implied promise by a sheriff selling goods taken in execution, that he does not know that he is destitute of title to the goods. But there can be no presumption of injury to the mortgagee, where the sale is made, and the property passes, to a single purchaser. In Hull v. Carnley, although the sale was in parcels, still all the parcels were purchased *Page 231 by and delivered to a single individual; and hence, the question as to the effect of a sale in parcels to different individuals, and without disclosing the existence of the lien, did not arise, and the court expressly reserved its opinion upon such a case. It may be necessary, ultimately, to settle this question in the present suit, but as its determination is not essential to the disposition of the case as now presented, and as there is not a perfect unanimity of opinion in this court upon the subject, it is deemed expedient to leave the point to be settled hereafter. The judgment must be reversed and there must be a new trial, with costs to abide the event. All the judges were for reversal upon the preceding opinion, except COMSTOCK, Ch. J., and DENIO, J.