Earll v. Stumpf

LyoN, J. The complaint does not show that the mortgage debt was evidenced by any instrument other than the mortgage. The fair inference from the complaint is that it was not. The averment is only that the mortgage was executed by Olin & I-Iarvey to secure the payment of $2,400 to Stumpf, Cage & Eckels. It cannot be doubted, therefore, that the assignment to the plaintiff of an interest in the mortgage was an assignment of an interest in the debt which the mortgage was given to secure. Such an assignment carries with it a corresponding interest in the mortgaged property. Emmons v. Dowe, 2 Wis., 322. The intention of the mortgagees to assign an interest in the mortgage debt being clear, we apprehend the same results would follow had the mortgagees held a note, or an obligation of the mortgagors other than the mortgage, for such debt. We do not think, however, that the interest so assigned became thereby paramount to the remaining interest of the mortgagees, but that by such assignment the plaintiff and the mortgagees became tenants in common of the mortgaged property to the extent of their respective interests. ITad the parties intended that the plaintiff’s interest should be paramount, it should have been so expressed in the assignment or other evidence of the contract, as was done in Emmons v. Bowe, supra, (p. 325). Such being the relations of the plaintiff and [53] tbe mortgagees to the mortgaged property, we understand the complaint to allege that the defendant (who presumably is one of the mortgagees) seized all of the property and sold it to satisfy his share of the mortgage debt. By this is probably meant that he acted for the mortgagees — the firm of Stumpf, Gage & Eckels. He did not attempt to protect the rights of the plaintiff in the mortgaged property, but acted in hostility to her rights, by selling the whole property for the payment of his debt, or that of his firm, regardless of the plaintiff’s interest in the property. Probably the sale was valid (if free from fraud) because made by one of the mortgagees who necessarily had authority to make it, and operated to divest the title of the plaintiff to the mortgaged property; at least, the defendant is in no position to assert that it was not valid. The rule of law is well settled by numerous adjudications that one tenant in common may maintain trover against his co-tenant for a sale or destruction of the entire chattel by him to the exclusion of his co-tenant. The cases which so hold are collected in 6 Wait’s Act. & Def., 186. We think the rule applies here, and that this action, which is substantially for the conversion of the property, may be maintained. Had the defendant sold the property for the whole mortgage debt, fairly and without fraud, it is probable that the only remedy of the plaintiff would have been an action to recover her proportionate share of the proceeds of the sale. But this is not the case made by the complaint. An attempt seems to have been made to charge in the complaint that the sale was fraudulent, but the allegations are scarcely sufficiently broad to connect the purchaser with such fraud. True, it is charged that the purchaser is the minor son of the defendant, and was without means, but it is not charged that he was cognizant of the alleged fraudulent intent of his father, or that he did not pay for the property all that it could be sold for. Although without means of his [54] own, be may have procured the means elsewhere with which to pay for the property. But if the sale was fraudulent and the purchaser was a party to the fraud, such sale did not divest the interest of the plaintiff in the mortgaged property, but would be- operative to transfer the interest of the defendant (or of his firm, if he acted for the firm) to the purchaser. This is so, because the defendant is estopped to allege that the sale was fraudulent. In such case the plaintiff and the purchaser would be tenants in common of the mortgaged property, and either would have'the right to seize it and hold it for both. Upon this theory the plaintiff was lawfully in possession of the property when the defendant took it into his possession without her knowledge or consent, as stated in the complaint. He had no interest in the property at that time, and hence was a wrong-doer. This wrongful seizure of it under the circumstances stated, and the subsequent destruction of it while in his possession, amount to a conversion of the property, and the owners may maintain trover for its value. But in such an action all the owners should join. 1 Chit. Pl. (16th ed.), 74; Bradley v. Boynton, 22 Me., 287; Bucknam v. Brett, 35 Barb., 596; Gock v. Keneda, 29 Barb., 120. Hence if plaintiff’s, interest in the property wras not divested by the -sale, the purchaser should be a party to the action. We must affirm the order overruling the demurrer to the complaint, because the complaint states a cause of action, and because it contains sufficient allegations showing that the defendant has wrongfully divested the plaintiff of her title to the mortgaged property. If the plaintiff desires to proceed in the action on the hypothesis that the sale was fraudulent as to her, and that her mortgage interest is therefore still subsisting, the court will permit her to make her co-tenant a party to the action on such terms as shall be deemed just. By the Qoivrt.— Order affirmed.