Illinois Central Railroad v. Hawkins

Cooper, C. J., delivered the opinion of the Court. The single question presented in this case is whether a wrong doer who has destroyed personal property which had been mortgaged by the owner may, when sued by the owner, diminish the amount of his recovery by showing an outstanding forfeited mortgage, the mortgagor having remained in possession after breach of the condition of the mortgage. The court below excluded the evidence when offered, and we approve its ruling. In most of the states a mortgage upon lands is viewed in law, as in equity, as merely a security for the payment of the mortgage debt, and not as an estate in land except so far as to enable the mortgagee‘to acquire possession as an aid [203] to the collection of his debt. But as to mortgages on personal property, a different rule seems to prevail, and after breach of condition the mortgagee is considered, in law, as the owner of the property. Jones on Chattels, Mortgages, 699. In Everman & Co., v. Robb, 52 Miss. 653, Simrall, C. J., in delivering the opinion of the Court said arguendo, that this rule prevailed in this State, and that after forfeiture of the condition the inortagagee was at law vested with the absolute title to the mortgaged chattel. But in Buck v. Payne & Raines, Id., 271, the change wrought by our code provision had been considered and applied as well to mortgages of personality as to realty. That provision is that “ before a sale under a mortgage, or deed of trust,” the mortgagor or grantor shall be deemed the owner of the legal title of the property conveyed in such mortgage or deed of trust except as against the inortagagee and his assigns, or the trustee after breach of condition of such mortgage or deed of trust.” Code of 1880, Section 1204. The effect of this provision must be to preclude a stranger from interposing the mortgage or deed of trust as an obstacle against the mortgagor or grantor seeking to recover either the specific property or damages for its injury or destruction. The only effect of evidence of the mortgage and its forfeiture would be to show that another had the legal title with a right to immediate possession, whereby the estate- of the mortgagor would be cut down from that of owner to that of a mere possessor at the will of another. But the Statute declares that such shall not be the effect of a mortgage after forfeiture; but that notwithstanding such forfeiture, the mortgagor shall continue as before the legal owner as against all persons other than the mortgagee, or trustee in a deed of trust. The argument of appellant is that it is liable to respond to the mortgagee for the injury done to him by the destruction of the property to the extent of his mortgage debt, and because of the maxim nemo bis vexari, it is contended that the plaintiff herein can not have full recovery. We deem it unnecessary to decide whether the appellant is or is not subject to a suit at the [204] instance of the mortgagee, for if it be true that the mortgagee may recover, that would not affect the right of the plaintiff to have a full recovery in this action by force of the Statute. It is more competent for the legislature to abrogate the maxim nemo bis vexari, than for us to repeal by construction, the legislative declaration that the mortgagor in possession is as against the world (other than the mortgagee) the owner at law of the mortgaged property. It may be that there may be cases in which the tort feasor would be in danger of a suit by the mortgagor and also of one by the mortgagee, but relief if there be any must be had at the hands of a Court of Equity by a bill of interpleader. Affirmed.