Burge ex rel. Babcock v. Hunter

SMITH, P. J. One Stewart executed to the relator a promissory note, and a mortgage to secure the same, covering a horse. After the said note was past due the defendant obtained judgment before a justice of the peace against said Stewart and caused an execution to be issued thereon and levied on the horse. The relator made claim of ownership under oath and thereupon defendant Hunter entered into' a bond, with the other defendant as surety, to indemnify the constable, who later on sold the horse at public sale. This action was brought on the said bond and resulted in judgment for defendant, and relator appealed. The rule has been long and well settled in this State that, a mortgagor’s equity after condition broken, is not subject to seizure and sale under execution at the instance of a creditor. King v. Bailey, 8 Mo. 332; Yeldell v. Stemmons, 15 Mo. 444; Boyce’s Admr. v. Smith’s Admr., 16 Mo. 317; Sexton v. Monks, 16 Mo. 156; Rodgers v. Lidwell, 3 Mo. App. 600; State v. Carroll, 24 Mo. App. 358; Bank v. Metcalf, 29 Mo. App. 384; Hickman v. Bill, 32 Mo. App. 509; Hellman v. Pollock & Co., 41 Mo. App. 205. Though at the time of the levy the mortgagor was in possession of the property, yet, as the note given by the mortgagor was past due, the mortgagee was entitled then to the immediate possession; and, therefore, under the rule just referred to, the mortgagor had no interest therein that was subject to levy and sale under the execution. Where a mortgagee is of right, as here entitled to demand and take possession at any time this right draws with it the possession; and the wrongdoer is a trespasser on him. Cooley on Torts, pp. 512, 520. And where the mortgagee has the legal title to the chattel and the right to its immediate pos [642] session, he may maintain an action for an injury thereto while remaining in the visible manual possession of the mortgagor. Boone on Mort., secs. 258, 296; Cobbey on Chat. Mort., see. 508; Myers v. Hale, 17 Mo. App. 204; Stevenson v. Robinson, 39 Mich. 160. It, results therefore that the action was properly brought. But even if this be so and the relator is entitled to recover, the question then arises: what ought to- be the measure of that recovery? As no substantial damages were shown by the evidence to have been sustained by the relator by reason of the unauthorized interference of the constable with the property, his recovery should be restricted to nominal damages only. Sedgwick on Dam., secs. 98, 101, 565. His mortgage security was returned to the mortgagor without any deterioration in value. If he directly or indirectly purchased the property at the sale, he did an act which was not required to protect his interest in it. If the absolute owner of the property as he was (Robertson v. Campbell, 8 Mo. 616), then it is clear that his purchase gave him no better title than he already had. His purchase was futile. The trial court was of the opinion, as appears from its action in refusing the plaintiffs instructions, that the evidence was insufficient to justify a consideration of the case upon the theory that the note and mortgage were usurious; and to this we agree. We are unable to discover however, any theory upon which the defendant was entitled to recover. And the trial court has not, by any declaration of law given by it, indicated any such theory. As we think that upon the undisputed evidence the re-' lator was entitled to recover nominal damages, we shall reverse the judgment and remand the cause. All concur.