Worthington v. Hanna

Campbell, Oh. J. Mrs. Hanna sued Worthington, for haying, as sheriff, seized and sold certain chattels on process against Andrew Hanna, which had been mortgaged to her, and which were in the possession of the firm of McDougall, Nicholas & Abbott, under a security of the same date, which provided that they should take possession and sell goods to pay their own claim, and then turn over any surplus of goods or proceeds to her as sucb second mortgagee. The sheriff seized the property into his own possession under a writ of attachment, and sold it in parcels to different persons, without making any provision for either of the mortgages. The first questions arise upon the pleadings. The first connt of the declaration was in trover; but the parties — 532 — seem to have supposed that trover would not lie in such case, and no evidence was offered under it. That question, therefore, is not directly before us. The second count set out the rights of Mrs. Hanna under the second mortgage, which was recited at length, stated the mortgage of McDougall and others, according to its effect and their possession under it, and then averred a seizure, and conversion by sale to divers persons, whereby she was injured in her estate and deprived of her security on the goods, to her damage three thousand dollars, etc. This declaration was not demurred to, and we do not perceive how the cause of grievance, if actionable at all, could have been set forth more clearly or specifically. But it is insisted the declaration should have shown the insolvency of the mortgagors, and averred that the mortgagee had no other security. We do not think this objection well founded. It is based upon an idea that there is some substantial difference between the damage done to a mortgagee in possession and to a mortgagee out of possession, by the seizure and conversion of the goods. It is not questioned that a mortgagee in possession may sue in trover and recover for the conversion of property, whether he has other security or not, and whether or not his debtor is solvent. We see no possible foundation for holding that possession or present right of possession should make any difference in regard to the quantum of damages, within the extent of the security. The doctrine alleged would be equivalent to holding that no person could have a legal right to complain of being deprived of a security unless he could show the insolvency of his debtor, — or, in other words, that any wrong-doer could, at his pleasure, compel the holder of a security against a solvent party, to look only to the personal remedy and give up the security. This is too unrea — 533 — sonable a doctrine to be entertained, and is entirely without support, unless it is assumed that the cases of Manning v. Monaghan, 23 N. Y., 539, and Goulet v. Asseler, 22 N. Y., 225, countenance it. We do not think it important to compare those cases with others, or to consider how far they go in favor of such a doctrine, as we think in a case like the present our own statutes furnish a positive rule. And we do not regard it as material to discuss the technical character of the securities, inasmuch as the statute is express upon that matter also. The statute, authorizing a levy upon the interest of the general owner of personal property incumbered by security, is not confined to property mortgaged, but covers all “ goods or chattels pledged by way of mortgage or otherwise, for the payment of money or the performance of any contract or agreement.” And it allows the purchaser to acquire ” the mortgagor’s interest, only on paying the amount due or performing the conditions. No one can be allowed to put himself in a better position by wrong-doing than by acting lawfully. The rights of mortgagees cau only be divested by payment or tender of payment of their whole debt. Every security holder has a right to seek his money out of his security without proceeding against his debtor’s personal responsibility. And the legal value of every Security is the means it will furnish of obtaining satisfaction out of the property. It would be a singular doctrine to hold that an unsecured creditor can deprive a secured one. of his security, and turn him over to his personal remedy, or make him assume the burden of proof that his debtor is insolvent. We think the count sufficient, and that all the testimony relating to the solvency or insolvency of the mortgagor was surplusage. It was also claimed that the mortgagee could not sue — 534 — the sheriff for the conversion, but should seek out the purchasers and recover the goods from them. The statute does not permit the sheriff or the purchaser to take mortgaged property away from a mortgagee in possession and sell it in parcels. It only allows the sale to be made "subject to the lien of the mortgage or pledge existing thereon;” and it is only upon payment or tender of payment or' performance, that the purchaser obtains any rights whatever as against the mortgagee. There is no right, therefore, to dispose of any article whatever by itself or in advance of such payment. The right lawfully sold is merely the right of redemption, and this is not apportionable. When the sheriff departed from his statutory duty, and sold in parcels, he became a trespasser, and the sale was an unlawful conversion. The mortgagees were not bound to follow the property, unless they chose. It is also claimed that inasmuch as this mortgage was given by a husband to secure a debt due to his wife, which she purchased in New York from another holder, paying therefor out of her personal estate, derived from her own father, we have no right to assume that the common-law rule giving a husband all his Avife’s personalty has been abolished in that state, and must assume that the common-law still prevails there, and that the mortgage is therefore void. While Ave cannot assume judicially to knoAv what any foreign law is, there is no principle which Avill justify us in holding any thing void under foreign law which is lawful here, until the variance is shown. To that extent we may presume a conformity between our Laws and foreign laws. — Crane v. Hardy, 1 Mich., 56. And, in order to sustain the presumptive validity of foreign transactions, we have, in the absence of proof to the contrary, held them — 535 — valid when conforming to the common law. — High, Appellant, 2 Doug., 515; Ellis v. Maxson, 19 Mich. R., 186. But we can make no presumption that a transaction valid under our laws is not valid elsewhere. The case does not show very clearly that at the date of the transfer of the note, the parties were not domiciled here. If so, then their rights would be governed by our laws, — so far as the tille to personalty was concerned. But wherever they may have been living, the presumptions must be settled in her favor. It is also alleged as error that the court refused to instruct the jury to disregard the appraisement made under the attachment proceedings, in estimating the value of the goods. Plaintiff in error was allowed to introduce testimony on this subject, and the appraisal was left to the jury for what it was worth and not as in any way conclusive. We do not think there was any objection to this. It is a sworn valuation, made under the statute by persons selected by the plaintiff in error himself, as most likely to value the property judiciously. It is so far conclusive that the sheriff is compelled to release the property on a bond proportioned by its value. Testimony of value, being very much matter of opinion, has been received from many sources supposed to be reasonably reliable, upon less security against error than exists here. In Smith v. Mitchell, 12 Mich. R., 180, we allowed auction prices to be considered. In Sisson v. C. & T. R. R. Co., 11 Mich. R., 489, values were allowed to be shown by the published prices current. In Cliquofs Champagne, 3 Wallace, 114, and Fennerstein's Champagne, 3 Wallace, 145, a still more liberal rule was adopted. There may be serious objections to making any of these extraneous estimates conclusive. But when an appraisement is made in pursuance of a statute under oath, in the course of the proceedings, under which the party has himself acted, and — 536 — he himself selected the appraisers, we think it would be going too far to say that such a yal nation is entirely worthless as evidence against him. Assuming that he acted fairly in selecting them, — and this is a reasonable presumption,— it must be supposed that the safeguards provided by the statute with an express reference to securing this evidence, will give it at least a claim to consideration against the officer who obtained it. See also Comstock v. Smith, 20 Mich., 338; Kermott v. Ayer, 11 Mich., 181. These considerations dispose of all the errors alleged which haye been brought to our attention. We think there is nothing in the record which affects the correctness of the judgment, which is affirmed with costs. Graves and Cooley, J. J., concurred. Ciuustiancy, J., did not sit in this case.