Williams v. Brassell

BRICKELL, J. This action is in the nature of a special action on the case at common law, by a reversioner of personal property, for an injury to the reversion, pending the continuance of the particular or preceding estate. The right to maintain such action is well settled, on principle and authority; the test of its propriety being, whether the injury complained of is permanent, affecting the reversion; or temporary only, affecting tbe tenant of the particular estate. A sale of the absolute interest, by tbe tenant of the particular estate, or by a stranger, instead of the qualified interest, is an injury affecting the reversion, for which the reversioner may maintain this action. Arthur v. Gayle, 38 Ala. 259. To the action, two special pleas were interposed, which were demurred to; the demurrers were sustained, and the judgment thereon is the matter now assigned as error. The first of these [399] pleas avers that, after the seizure of the personal property, in which the reversion is claimed, and during the continuance of the preceding estate, the plaintiff became possessed of the property, and has remained in possession, undisturbed by the defendant. On demurrer, all pleading is construed most strongly against the pleader, for the presumption is, he states the facts most favorably to himself. In all actions for the wrongful taking or conversion of personal property, it is matter in mitigation of damages, that the plaintiff, subsequent to the taking or conversion, regained possession of the property, or that it was restored to him by the defendant. In such case, the plaintiff is still entitled to recover, whatever he may have been compelled to expend in regaining possession, or whatever damage the temporary taking or conversion may have caused him. Ewing v. Blount, 20 Ala. 694; McGurry v. Dyer, 47 Penn. 118; Ford v. Williams, 24 N. Y. 359. The averments of the plea are, that the plaintiff became possessed of the property, during the continuance of the temporary interest. The plea does not aver that the defendant had any agency in the plaintiff’s obtaining possession, nor that there was not an injury to the plaintiff’s right of reversion by the wrongful taking; nor that the property was in as good condition when plaintiff regained possession, as when it was wrongfully taken by the defendant; nor that the plaintiff was riot put to expense in regaining possession. The plaintiff, in no event, could have recovered for the use of the property during the continuance of the preceding estate; nor is there in his complaint any claim of recovery therefor. His right of recovery is limited to the injury to the reversion. That the property passed into his possession during the continuance of the preceding estate, is not material. The plea should have averred, in addition to the fact that the plaintiff became possessed of the property, that his reversionary interest was uninjured by the wrongful taking or conversion, and that he regained possession without expense or loss. It is presumed from the absence of such averments, that they could not be made consistently with the truth. The want of them rendered the plea demurrable. The remaining special plea avers, that the plaintiff, at the sale of the property by the defendant, purchased it, and accepted possession thereof from the defendant. The matter of this plea certainly forms no defence to this action. The plaintiff may have preferred purchasing the property, rather than permit it to pass into the possession of a stranger, asserting an adverse right to him. Such purchase does not legalize or ratify the wrongful act of defendant in making sale of the property. It may diminish the plaintiff’s right of recovery, to the amount he paid on such unauthorized sale; but it does not absolve the [400] defendant from all liability. If it did, be would be permitted to found a defence on bis own wrong. Tbe taking and sale of tbe absolute property is tbe wrong of wbicb tbe plaintiff complains. Tbe wrong continues, though the plaintiff became the purchaser of the property, and paid the defendant money which he has no right to retain. Murray v. Burling, 10 Johns. 180; Ford v. Williams, 24 N. Y. 359. The circuit court correctly sustained the demurrers to the pleas, and the judgment is affirmed.