(dissenting)—I agree with all parts of the opinion of the court, except the conclusion that, if the boat cannot be returned, the appellants may recover its whole value as of the date of the taking by respondent.
If it be determined that, prior to the time respondent took the boat under replevin, appellants had placed on it a lien which was foreclosed and the boat sold thereunder to third parties, while it was in the respondent’s possession by virtue of the writ of replevin and appellants were parties to such foreclosure suit, and it be further determined that, because of such condition, respondent is unable to return the property, then, in my opinión, appellants could recover the value of the boat as of the date it was taken by respondent, less the amount of the lien which was so foreclosed.
Most of the authorities hold that the fact that the property taken by a writ of replevin is destroyed by the sea or by fire, or if it be live stock, dies, or is stolen, while it is in the possession of the taker and wholly without his fault, will not relieve the taker from accounting to the owner for the full value of the property taken. But those cases are not in point because in them the owner was not in the slightest degree responsible for the loss. Here the owners were directly responsible for the loss, for it was a lien created by them which caused the loss. Suppose this boat had been sold by the state for taxes levied while the property was in the possession of the appellants, could it be held that they could nevertheless recover the whole value of the boat? Or suppose that, after the state had taken the property in possession for the purpose of such sale and was advertising it for sale, the respondent had paid the tax, could it be held that it would not have had the right to have such payment deducted from any damage appel*17lants might recover? Washington Ice Co. v. Webster, 68 Maine 449.
Oases more in point than the fire or death cases, are those where slaves were held by writs of replevin at the time of their freedom. In those cases it was held that the owner could not recover any damages because the slave could not be returned. The fact that it has turned out that respondent wrongfully took the boat ought not make it liable for the debts or the defaults of appellants. To require it to pay the full value of the boat, is to require it to pay respondent’s debts to the extent that they were secured by the lien on the boat. I know of nothing so technical or sacred in a replevin bond as to require this result. The statute merely provides that, if the property cannot be returned, judgment for its value shall be given. The value is what the boat is worth, less valid liens on it. The rule ought to be one of compensation to the owner. Judge Dunbar, in Meeker v. Johnson, 3 Wash. 247, 28 Pac. 542, speaking of our replevin action, said:
“This is evidently the object of our statute, to combine the actions of replevin and trover, and to adjudicate in one action all questions involved, and which are necessary to completely determine and settle the matter in controversy. ’ ’
Adjudicated cases involving this exact question seem to be very scarce. The court’s opinion does not cite any.
In the case of Jackson v. Bry, 3 Ill. App. 586, the court, in discussing a question like the one here, said that in that state it had been held that
“The measure of damages must be ‘the amount of the loss sustained by the execution creditor, by the failure of the defendant to deliver the property at the time required.’ Not what the property would have been worth if unaffected by infirmity or prior liens, but its value subject to any defects or incumbrances that *18existed at the time it was replevied. If an animal was affected by disease, of which it afterward died, then no considerable loss conld be sustained by not returning it according to the condition of the bond. If it was an inanimate species of personal property, which it is asserted the appellant in this case is estopped from denying, then the loss sustained would be its value, subject to any prior existing liens. This would be the measure of damages properly recoverable. If the property replevied was of no intrinsic worth to either of the parties claiming it, and the plaintiff in the action prevented from making a return by force of a superior right overriding all the opposing claims, to allow damages against the obligors in the bond for its full value without reference to that superior right, would be such an act of gross injustice that courts of law could not sanction.”
See, also, Dehler v. Held, 50 Ill. 491.
In this case, the court holds that, if the boat was lost to the respondent because of the foreclosure of the lien and a sale had thereunder, then respondent would be liable for the value of the use only to that time. Well, if such condition will relieve respondent from liability for the usable value, why will it not also relieve it from liability as to the value of the boat, to the extent of such lien indebtedness?
Fullerton, Main, and Mount, JJ., concur with Bridges, J.