There is no material distinction between the facts in this case and those in Hull v. Carnley, which has been twice before us. There are some circumstantial differences, but none which affect the principle of the action.
For instance, the defendants in that case were the officer and the judgment creditor, while here the creditors alone are sued. There, the property, though sold in parcels, was all purchased at the sale on the execution by one person, while, in the present case, there was more than one purchaser, but how many does not appear. The property in question in Hull v. Carnley, was a printing press and apparatus, while here it was a quantity of liquors and cigars. If the question related to the bona fides of the mortgage, it would be a circumstance of some weight that the property was of a kind which literally perishes in using; as it would be difficult to conceive a motive for leaving such property in the hands of the mortgagor unless it were to enable him to sell it out in the course of his business, and protect it in the meantime against the executions of his creditors. In respect to property which may be profitably used, it may be honestly left in the possession of the mortgagor from motives of humanity, or to enable him by its use to acquire the means of satisfying the debt. But no question of fraud was litigated in this *Page 232 case, and, moreover, the distinction, if material, would be unfavorable to the plaintiff. Property in the possession of the mortgagor for a time certain, fixed by the terms of the mortgage, is subject to levy, whatever may be its quality. With the right of possession until default the purchasers acquire the right of redemption, which may be of great value, though the use of it during the time of credit would not often, and certainly not in this case, be worth anything. In Hull v. Carnley, we held that chattels which are mortgaged may be seized, and the interest of the mortgagor therein sold on an execution against him where they are in his possession, and he, at the time of the seizure and sale is, by the terms of the mortgage, entitled to their possession for a definite period. It was also decided that the officer might sell the property generally and deliver possession to the purchaser without in any way recognizing the lien of the mortgage. (1 Kern., 501.) The judgment which had been rendered for the plaintiff was reversed, and the case was again tried according to the law as thus settled; and the second judgment was, of course, in favor of the defendant. Upon a second appeal to this court the question was again elaborately argued before all the judges. In the opinion of the court, pronounced on that occasion, the principles of the former judgment were unanimously affirmed and judgment was given against the appellant. On the second trial it had appeared that the different parcels were sold separately, though one person purchased all the parcels; which led the judge who prepared the opinion to remark that the difficulty in the way of maintaining the action was just as formidable in the case of a sale by retail as by wholesale. "It is not," he said, "the act of the sheriff, but the relation which the mortgagor himself sustains to the property, which prevents him from maintaining the action."
The principles thus decided were by no means new doctrines in this State. In Van Antwerp v. Newman (2 Cow., 543), a judgment debtor was possessed of goods which he had hired of the owner for a term, at the expiration of which they were to be surrendered to him. The defendant, as sheriff, sold them *Page 233 absolutely on the fi. fa. The general owner sued him in trover, adding a count in case for an injury to his reversionary interest; and he justified under the execution. The Supreme Court held that the plaintiff could not recover. After determining that the interest of the debtor in the property was the subject of levy, according to the English cases, referred to in Hull v.Carnley, the court considered the effect of a sale absolute in its terms upon the rights of the ultimate owner. If it divested those rights he would be entitled, as it was supposed, to a remedy; but the court held that the plaintiff was not by the sale divested of his property in the goods, and that, therefore, he had no right of action.
There is another case in the late Supreme Court, precisely in point, reported since Hull v. Carnley was decided, though adjudged in 1843. The debtor had mortgaged goods to secure the payment of two promissory notes, one of which was past due and the other payable at a future day, and he was to continue in possession until default. Before any default had happened, the defendant caused the goods to be seized on an attachment against the mortgagor. The mortgagee brought replevin in the cepit, and it was held by this court, Judge BRONSON giving the opinion, that he could not recover, on the ground that he neither had possession nor the immediate right of possession. (Carpenter v.Town, Lalor's Supplement to Hill and Denio, 72.)
The Superior Court appears to have given the judgment under review upon the supposition that the English courts had held a different doctrine from that established here, in the cases which have been referred to. If this were the case, it would not, in my opinion, afford a reason for departing from the course of adjudication in our own courts, especially since it has been repeatedly confirmed by the court of final review in which we are sitting.
But it is, I think, a mistake to suppose that the courts in England have laid down a different rule. In Bradley v. Copley (Mann., Gr. and Scott, 685), decided in 1845, it appeared that one Boulton had executed a chattel mortgage, to the plaintiffs, *Page 234 of certain tavern furniture to secure the payment of the purchase price thereof, he having bought the property of the plaintiffs. The mortgage was to be void if Boulton should pay the debt, with interest, on demand; it was provided in the mortgage that until default Boulton should hold, possess and enjoy the furniture,c., without any hindrance or denial from the mortgagees. Boulton afterwards confessed a judgment, upon which an execution was issued to the defendant, as sheriff. Before the seizure, the plaintiffs gave the defendant and the judgment creditor notice that the property belonged to them; but the defendant, notwithstanding, sold it at auction under the execution, upon which the plaintiffs brought this action of trover, adding a special count in case which, however, was not adverted to in the opinion. TINDAL, Ch. J., said: "Ever since the case of Gordon v. Harper (7 T.R., 8), I take the rule to have been that, to enable a party to maintain trover, he must have the right of possession as well as the property in the goods sought to be recovered. That case has been followed by many; and I am unable to distinguish it from the present case, except in this, that there the right of the landlord to the possession of the goods was postponed for a certain and definite time, whereas, here the goods were to revert to the plaintiffs at an uncertain time viz.: on default of Boulton in paying the debt on demand. When the conversion complained of took place, the plaintiffs were not in a situation to require possession of the goods; I, therefore, think the case is governed by Gordon v. Harper, and that the plaintiffs are not entitled to recover." The other judges followed in remarks to the same effect.
The case relied on in the opinion of the Superior Court, isFenn v. Bittleson (2 Wels., Hurl. and Gor., 152; reported, also, in 8 Eng. L. and Eq. R., 485). That was likewise the case of a personal mortgage. The mortgagor had become bankrupt, and the goods were sold absolutely by the assignees under the bankrupt act. The mortgagee recovered. If these assignees stood in the same legal position with creditors enforcing their executions, or as officers selling under an execution, *Page 235 the facts would have been similar to those of the case before us, and of the cases which have been cited. But it was precisely because they did not occupy that position, that the court held that the sale was a conversion. It was declared that the act of the assignees was the same as though it had been the act of the mortgagor himself. The contract between the parties, the court said, "never meant to authorize Malpas [the mortgagor], his executors or administrators (not assigns), to do more than use the chattels, and not to give the use to a third person, certainly not for a longer period than his own term. The transfer of the property absolutely to a stranger was, therefore, unquestionably wrong, and it operated as a disclaimer of tenancy at common law." In another part of the opinion it is said that, if the goods "had been simply taken by a third person out of Malpas' custody during the term stipulated for, no action of trover could have been maintained, because the plaintiffs would have had no present right of possession. The cases of Gordon v.Harper and Bradley v. Copley would certainly have applied." We are not concerned to inquire into the accuracy of the distinction upon which it was held that the sale by the assignees was the same as though it had been made by the mortgagor himself. It is sufficient for the present purpose that the case was decided upon that theory, and that the sale by Malpas' assignees was considered an act of disloyalty by Malpas himself towards the parties who held the mortgage, which, ipso facto, put an end to his right of possession. This view is made entirely clear by the express approval by the court of Gordon v. Harper andBradley v. Copley, in each of which cases the goods were taken and sold on execution against the party entitled to the temporary possession, without any acknowledgment of the ultimate property of the plaintiffs.
It has been suggested that, if neither trespass nor trover would lie against the defendant, yet an action on the case could be sustained for an injury to the plaintiffs' reversionary interest. It may be conceded that a party may so conduct himself in the enforcement of his legal rights as to render himself liable *Page 236 to a party aggrieved, as it is clear an officer may execute process against property in such a way as to wrongfully oppress and injure a party, though a direct action for wrongfully taking the property would not lie. But there are several objections which, to my mind, render it impossible to support this judgment upon such grounds. In the first place, the action is brought for wrongfully converting the property in question. The complaint assumes that the plaintiff was the owner and entitled to the possession, and that the defendants, without any authority, but wholly of their own wrong, have caused it to be sold. There is no allusion in the complaint to any process by which it could be interfered with or to any abuse or misconduct of the nature suggested. There is a great dissimilarity between converting one's goods, and oppressively executing legal process against them, by which he is injured. The scope of such actions is wholly different. Then the case was not tried on any such theory. The plaintiff sought to recover as for property of his, wrongfully taken and converted, and not for consequential damages for an injury to interests in reversion. The jury were directed to assess the value of the property taken. By this was meant its value when taken, and not damages for a supposed disturbance of rights in reversion; and this was the measure of the damages actually given. Moreover, there was not a scintilla of proof that the plaintiff had sustained any damages of the nature suggested. If the defendant had no right to levy the execution upon the property, and it belonged to the plaintiff, the defendants were trespassers, and the measure of damages was the value of the property; but if the wrong was the selling in parcels and not giving notice to the purchasers of the existence of the mortgage, then the damages were to be assessed upon different considerations. The responsibility of Bonnier upon his personal contract was one. If the money was collectable notwithstanding the loss of the collateral security, the damages would have been nominal. But if he were insolvent, the plaintiff's only remedy was upon the mortgage. Then the degree of difficulty and the nature and extent of the impediment in enforcing it against the mortgaged property *Page 237 at the expiration of the time of credit, were the material circumstances which would determine the measure of damages. But there was no evidence upon any of these points; and none was given, because no such cause of action had been thought of. Finally, the cases which have been referred to, show that no recovery upon such grounds could be sustained. In Van Antwerp v. Newman, the goods were sold on execution as in this case, without any recognition of the general ownership of the plaintiff, and there was a count in the declaration for an injury to the plaintiff's reversionary interest; but it was held that the action did not lie. In the case of Hull v. Carnley, the material facts were identical, as has been shown, with the present case, and the judgment was for the defendant. I conceive that there can be no legal injury to the right of the general owner, unless his reversionary interest is displaced or divested by the sale of the goods on execution against a party entitled to the temporary possession. But it is clear, on reason and authority, that such interest is not displaced or affected. It may be more or less available after a sale, according to the residence of the purchasers, the place where the goods are afterwards kept, or other special circumstances. But the right of the reversionary proprietor remains the same. No doubt it would conduce to convenience that the purchasers should be informed of the limited nature of the interest they were purchasing, in order that they should not ignorantly do any act which should prejudice the mortgagee; but it would be quite easy for the latter to avoid that danger by giving the notice himself at the time of the sale. He would naturally have knowledge of the fact, which the officer or judgment creditor would not be likely to have.
My opinion, in conclusion, is that the question sought to be made by the respondent is not an open one in this State, or in England, and especially that in this court it has been put at rest by repeated concurring judgments upon this precise point. I am, therefore, in favor of reversing the judgment of the Superior Court, and of giving judgment for the defendant for *Page 238 a dismissal of the complaint, according to the provision in the case as settled.