White v. Webb

Hinman, J. Three questions are presented upon the motion, for the consideration of the court. 1. Ought Clark to have been joined with the plaintiff in the suit ? 2. Admitting the legal title to the property to be in Austin <f* Dunham, the first mortgagees, can the plaintiff maintain the action upon his possession, and the title acquired by his mortgage subsequent to Austin tf* Dunham’s ? 3. Did the court err, in [305] omitting to charge the jury, on the question of damages, in conformity to the claim of the defendant ? The two first questions may be laid out of the case, as the defendant has, very properly, abandoned them, in the argument. It is very clear, that even if Clark ought to have joined, the non-joinder of a party plaintiff, who ought to join in actions ex delicto, can only be taken advantage of, by plea in abatement. 1 Chill. Plead. 53. Addison v. Overend, 6 Term Rep. 766. Sedgworth v. Overend & al. 7 Term Rep. 279. Bradish v. Schenck, 8 Johns. Rep. 151. It is equally clear, that the instructions asked for on the second point, ought not to have been given. The plaintiff was in possession of the property; — he had an interest in it, acquired by his mortgage deed. He is, therefore, entitled to the possession, and to the property also, against all the world but the real owner. The defendant was a mere stranger; and surely, he cannot interfere with the plaintiff’s possession, nor with his title. The decision of the second point, which the defendant abandons, seems to us, to involve the principle which determines the only remaining question in the case — the question of damages. But it is claimed by the defendant, and insisted upon in the argument, that though the plaintiff’s possession is sufficient to enable him to sustain his suit; yet the damages must be measured by the isterest which the plaintiff has in the property ; and, therefore, the amount of Austin <§• Dunham’s mortgage ought to be deducted, and damages given, only for the excess of the value of the property over that incum-brance. : In actions of trover and trespass, for property taken and converted by the defendant, where there is no malicious motive, on the part of the defendant, but he takes the property under a claim of right, and the real dispute is, as to the title ; the rule of damages is the value of the property, at the time of the conversion or taking, and interest on that sum to the time of judgment. If, however, the suit is brought by a bai- ^ lee or special-property man, against the general owner, then, \ the plaintiff can recover the value of his special property ! only; but, if the writ is against a stranger, then, he recovers , the value of the property and interest, according to the gen [306] eral rule; and holds the balance beyond his own interest, in trust for the general owner. Kennedy v. Whitwell & al. 4 Pick. 466. Spoor v. Holland & al. 8 Wend. 445. Brizsee & al. v. Maybee, 21 Wend. 144. Ingersol v. Van Bokkelin, 7 Cowen 670. 681. and note. The application of these principles to the case under consideration, is obvious; and conclusively shows, that the rule contended for, by the defendant, is opposed to the principles of decided cases, as well as to the dictates of reason and common sense. In the decision complained of, there is, therefore, no error •, and no new trial should be granted. In this opinion the other Judges concurred, except Chxjrch, J., who was not px-esent. New trial not to be granted.