Morrison v. Judge

DARGAN, J. A mortgagee may bring detinue to recover chattels conveyed to him by way of mortgagee, nor c a lithe mortgagor defeat his right of recovery, without showing the entire payment of the debt intended to be secured thereby; and if default has been made in the payment of the money by the mortgagor, the mortgagee may bring detinue to recover the possession, and the extent of the default is an immaterial inquiry. See 7 Ala. Rep. 807. The mortgagee, by the terms of his contract, is entitled to the goods as his security for his debt, and if they are withheld, and he sues, if his recovery in detinue should be limited to one chattel only, when two are mortgaged to him, because the one is sup posed to be of value sufficient to satisfy his debt; his rights secured by the deed of mortgage, would be denied to him. After default therefore, in the payment of the money, if the mortgagee bring detinue against the mortgagor, or those claiming under him, neither he, or they, can gainsay the right of the mortgagee to recover all the goods conveyed by the deed. From this view it results, that the court erred in permitting the record of the recovery against Gardner, of one of the slaves conveyed by the mortgage, to go to the jury as evidence to reduce the value of the slaves. If the action had been trover, and the suit against the [185] mortgagor, or his assignees, according to the decisions of this court, the damages would have been, the amount of the mortgage debt, if the chattel was worth this amount. See McGowan v. Young, 2 Stew. &. P. 160; also, 6 Ala. R. 345. But it must be borne in mind, that in trover, the chattel is not recovered, but damages for- its conversion; and when the damages assessed are paid, the title of the plaintiff is divested, and becomes vested in the defendant. Hence, to limit the recovery to the amount due on the mortgage, does injustice to no one, for thereby the mortgagee recovers his debt, and the title of the mortgagor is restored to him. But in detinue, the plaintiff seeks to recover the specific chattel, and when he obtains the possession by suit, his debt is not extinguished, nor is the equity of redemption lost, but in equity, the property would be considered still as a security for the debt. The plaintiff, then, being entitled-to recover the chattel, the jury should, in this action, assess the full value of the chattel, without any regard to the amount of the debt due on the mortgage. The court therefore erred in charging the jury, that if the' plaintiff was entitled to recover, the amount of the recovery should be limited to the amount due on the mortgage, by which we suppose was meant, that the value of the slaves should not be assessed to a larger amount' than was due on the mortgage. But it is contended, that even if the court erred in the charge, and also in permitting the recovery against Gardner to go to the jury as evidence, yet as there was testimony tending to impeach the mortgage deed for fraud, we are bound to presume, that the jury believed there was fraud in the mortgage, and rendered their verdict accordingly; and therefore the value of the slaves is, and was, an immaterial inquiry, and the cause cannot be reversed. The rule of law is this. The party complaining of error in the rendition of a judgment, must clearly show it; but if an error is shown to exist, then it devolves on the other party clearly to show, that such error did not, and could not have injured the plaintiff. [186] We canno.t say that the ruling of the circuit court did not injure the plaintiff, and therefore the cause is reversed and remanded.