Street v. Sinclair

STONE, J.

I dissent from the opinion of the majority of the cotut, and think the rule declared will naturally lead to disorder and violence. Public peace is of more importance than the possession of a chattel, even by the.rightful owner. In my opinion a mortgagee has no right to go on the premises of .another, and there, without the consent, and against the pronounced objection of the mortgagor, take and carry away the chattel, even though the law day of the mortgage is passed, and the mortgage debt remains unpaid. I call such proceeding force; such force, as in the case of Bobb v. Bosworth, 12 Amer. Dec. 273, S. C. Lit. Sel. Cases, 81, it was declared authorized resistance by force. A seizure of one’s own property can not, at one and the same time, be a lawful seizure, and jet authorize resistance by force. The two lights are incompatible. A taking of one’s own property without process can be justified only when the circumstances are such that resistance to such seizure would be a tort and a trespass. This I understand to be the true rule. Such was, in substance, the rule declared in Thornton v. Cochran, 51 Ala. 415. The sylabus of that opinion is made part of the text in Wait’s Actions and Def. vol. 6, 97. See, also, same vol. 120; Huppert v. Morrison, 27 Wisc. 365. I think my brothers have departed entirely from the principle declared in Thornton v. Cochran, supra. See, also, Turnley v. Hanna, 67 Ala. 101; Cooley on Torts, 168; Churchill v. Hulbert, 110 Mass. 42; S. C. 14 Amer. Rep. 578; 1 Hil. on Torts, 204.