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Allison . M'Cune.

course.

Dec. Term

18416.

to the extremity to ask of the Court the adoption of any such In Bank.

It appears to us, the action may be sustained upon the ordinary principles applicable to a special action on the case, in general. Such an action lies to recover damages for an act done by another, either lawful or unlawful, with force or without, when the damages are not immediate, but as a consequence resulting from some intervening act, produced by that which is the gist of the action. Examples in the books are known to every lawyer. The action, by a singular provision of the statute of Ohio, has been extended to cases where trespass will lie, and is now a legal remedy to recover for an assault and battery. But take the action of case, as defined, with the general principle that the law gives redress for every injury, (but : to which rule there are, doubtless, exceptions,) why is the plaintiff, on principle, not entitled to maintain his action ? To simplify the facts, the agreed case shows he was a mortgagee of Andrew Allison; the condition of the mortgage was broken and the defendant was a subsequent judgment creditor of Andrew. As against Andrew, the lién of the plaintiff's mortgage was older than that of the defendant's judgment.' Under these circumstances, the defendant, with his execution, issued upon his judgment, interferes and lessens the plaintiff's security, by removing the fixtures and destroying the mill covered by the plaintiff's mortgage, so that the mortgage lien is an insufficient security for the plaintiff's debt, and Andrew Allison has no other property of any description. In our opinion, on principle, where such security is thus diminished, and damages result from the act, to the plaintiff, the action lies. For authority, we have examined only the cases cited. The 2 Greenleaf's Rep.. 173, presents a case directly analagous : M mortgaged to W, and afterwards erected a house on the land. M sold the premises to another, and he sold the house to the defendant, who removed it. The mortgage was assigned to the plaintiff, and it was held he might recover the value of the house. Idem, p.

is a similar case, but the action was trespass.

387,

Aliison v. M'Cune.

IN BANK Dec. Term,

1846.

There is, however, no difference in principle. Possession or right of immediate possession is not always necessary to maintain cases for an injury either to real or personal property. It will lie for an injury to a reversionary interest, in either personalty or realty, though in trespass, without the aid of the Ohio statute, the rule would be different.

But it is said, the machinery of the mill was not realty or fixtures, and did not pass with the mortgage; but the evidence shows, it was placed there for permanent use; that it was attached to the mill and the freehold; and, in this case, the facts show, inevitable loss will probably result to the plaintiff, though permitted to recover in this action.

Judgment for Plaintiff.

BIRCHARD, J., dissenting. This action should not be sustained. The plaintiff had no claim but that derived from the mortgage, and he was out of possession. By the uniform decisions of this Court, the mortgagor in possession holds the legal title, as against all the world, except the mortgagee, and against him till the condition is broken. 2 Ohio Rep. 223 ; 8 Ohio Rep. 222.

There was no such thing as a reversionary interest in the mortgagee. He had no rights save those to be worked out under his mortgage deed. It is well settled that, while out of possession, he cannot maintain trespass. Equally well settled is it, that for an injury, immediate and direct, trespass, and not case, is the only remedy known to the common law.

Our statute giving the action of case where trespass would lie at common law, seems to break down old and established forms. It was enacted to place, as far as legislation could effect that object, the unskilled and ignorant upon an equality with men of experience and learning — not to create a right of action, which was before unknown, and which would give to one man a remedy that otherwise would belong to his neighbor.

This is manifestly a case of first impression. It is a novelty. There is nothing like it in all the books. Nothing which will

Allison v. M'Cune.

1816.

bear a close analogy to it, when carefully examined. The mere in Bank. fact that it is novel, however, would not be a fatal objection, in Dec. Term, my opinion, if it were the only one. There is something more serious than novelty to be overcome. The wrong for which this suit was brought, was the detaching of alledged fixtures. The injury complained of was direct, and done to the realty. The person in possession was the one who had the right of action. He, and he alone, should be allowed to prosecute; and he may, tomorrow, sue for and recover damages to the full extent of all the injury done to the premises. The levy of an execution upon the real property, or upon fixtures - which, as savoring of the realty, would pass by deed conveying the land

could not be justified under the execution. The officer and the defendant treated it as personal chattels; and if it was not such, they were both trespassers ab initio. The proceedings upon execution will be no defence to a suit brought by the mortgagor, if the property sold was what the plaintiff claimed it to have been, and the rule of damages cannot be less than the amount of the whole injury that was sustained.

My brethren argue that this proceeding would be no bar to an action by the mortgagor. They claim, however, that it would bar a recovery, so far as the damages to the reversionary interest are concerned. As I have before said, there is no reversionary interest in the mortgagee. The owner of the land, the mortgagor, has the interest affected by the supposed tres, pass. It was his right to protect the property, pledged for the payment of his own debt, from waste; his right to have the whole of it, either to use in payment of his debts or otherwise, as might not be inconsistent with his own contracts, and no trespasser can gainsay that right.

To make the matter apparent to any one, let me suppose the act complained of to have been done by a wanton trespasser; that the mortgagor in possession prosecutes for the injury, and proves the damages to be equal to half the original value of the land and its appurtenances. The rule of damages would be such sum as would be equivalent to the injury. This Court

Allison" v. M'Cune.

1846.

In Bank. would direct the jury to assess that amount, at all events. The Dec. Term, fact that the land was under a mortgage for more than its value,

would not affect the rule. If the mortgage should be offered for such a purpose, it would be ruled out, and the trespasser would be told that it was the privilege of his adversary to have his own property applied to the payment or security of his debts, and that it was as valuable to him for that purpose as for any other. The recovery, therefore, would be for the whole amount of the damage.

Now, if this plaintiff's action is allowed, there is nothing in the case which I have supposed to prevent the mortgagee from prosecuting and recovering damages for the same injury. The mortgaged premises being of less value than the debt secured by it, and the only means of payment, the injury to the mortgagee must be held; under the theory of my brethren, coextensive with the supposed trespass. Thus, there would be two actions, and two recoveries of full damages, in addition to smart money for the same matter, cause and thing, by different plaintiffs. Such a thing would not be a mere novelty. It would be an absurd violation of justice a wrong which would demand a new remedy; and if the Legislature would not give it, the Court would feel itself called upon to retrace its steps, or to make such further advance as would meet an evil of its own creation.

It is said, 'that if the plaintiff has any remedy it must be by this action..

Cases to sustain it are cited from other States, in which, for like injuries, trespass has been maintained. It is admitted that in all those States, the legal estate and right of possession are regarded as in the mortgagee, and that the different rule in Ohio renders case the proper action here.

It may be, that the plaintiff will have no remedy if this action could not be sustained. If so, he would be placed in the same condition that many other creditors have been who took insufficient measures to secure the debts due them. He might have done better. There was no law to hinder him from con

Heighway v. Pendleton.

1846.

tracting for the possession or control of the property pledged. In Bank.

Dec. Term, to him as security. It was his own folly. to leave it in the hands of his creditor.

The cases quoted from other States, violate no correct principle and lead to no absurdity. They give the legal action to him holding the title and the possession, and, as a consequence, would deny it to the opposite party. They would send the latter, holding, as they do, that he had but an equity of redemption, into a court of equity to enforce any right belonging to him. That should be done in this State, under our decisions, by the mortgagee. One having but an equity, and no legal title or actual possession, should not be permitted to re sort to a court of law and prosecute an action upon a mere equitable claim, contingent in its nature, and which at any moment may be utterly extinguished by the payment of the debt.

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John Doe, ex dem. Eliza A. HEIGHWAY vs. NATHANIEL

G. PENDLETON and others.

If a party move for a new trial, on the ground that improper testimony was admitted,

such fact must be made distinctly to appear, or the verdict will not be disturbed. A slight impression upon process, after the lapse of many years, will be presumed to

be the seal. If a judgment is obtained on unsealed process, and such judgment be afterwards re

vived, without objection, the want of the seal does not impair the validity of the

judgment. After condition broken, a scire facias on a mortgage, in 1808, might legally issue

against the administratrix. By the supplemental act of 1807, lands mortgaged before the act of 1805, “ providing

for the recovery of money secured by mortgage,” was in force, were liable to seiz

ure and sale, by execution on judgments by scire facias. After judgment by scire facias, the lands must be sold according to the law in force

when the judgment was obtained, and not when the mortgage was executed. In 1808, a judgment by scire facias, on mortgage, " that the plaintiffs recover their

debt and damages, and have execution therefor," without specifying, expressly, the amount of the judgment or the sum for which execution should issue, is reducible . to certainty and valid, when collaterally called in question.

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