(dissenting). — I. I cannot assent to the foregoing opinion, believing that-it is based upon a misapprehension of the law applicable to the facts of the case, which, briefly stated, are these : Defendants executed an indemnifying bond to the sheriff, to protect him against liability by reason of a levy of an execution he was required to make upon goods claimed by a mortgagee under a chattel mortgage. The execution was against the mortgagor and in favor of Ferrall & Hawkins Bros., who are defendants in this case. The mortgagee assigned his claim under the bond for damages to the plaintiff, who prosecutes this suit on the bond.
II. What did the mortgagee assign to the plaintiff ? His claim under the bond for damages. What was that claim ? A chose in action arising on the bond by reason of the facts that the mortgagee-held a special property, under the mortgage, in the goods, and the right to the possession thereof as the holder of such special property. He could maintain a suit for the deprivation of that property, and right of possession. His damages recoverable in such action would be the value of his interest in -the goods. That interest, of course, would depend upon the existence of the debt' secured by the mortgage.
III. The mortgagee’s claim upon the bond as a chose in action was, under the laws of this state, assignable, and an action was maintainable thereon by the *170assignee. But, in order to assign his claim for damages, the mortgagee was not required to assign also the debt or mortgage, or both. ' These were only evidence of the right to recover damages, — -the muniments, as it were, of his title thereto. They constitute no part of the damages, — the thing assigned by the mortgagee, and sought in this suit to be recovered by plaintiff.
IY. When the mortgagee comes to enforce his debt and the mortgage, it may be pleaded that the debt is paid to the extent of the recovery had by him on the bond, which was for the property mortgaged. The bond stands in the place of the property, and the mortgagee’s rights are affected by recovery on the bond, just as they would have been had he taken the property and sold it under the mortgage.
Y. The position of the foregoing opinion — to the effect that the assignment of the claim for damages cannot be supported unless it be shown that the debt and mortgage are also assigned to' the assignee of the claim for damages — is shown to be plainly unsound by these considerations: If the value of the property levied upon is less than the debt, the mortgagee, under the doctrine of the foregoing opinion, will lose his debt to the extent to which it exceeds the value of the property. The measure of recovery on the bond is the value of the property not excéeding the mortgage debt. Now, if the mortgagee must assign the debt, if it be for one thousand dollars, in order to be enabled to assign the claim for damages, which may be for but one hundred dollars, an evident absurdity exists which, it will be readily seen, would work gross injustice. Indeed, it seems to me that the doctrine of the foregoing opinion is not only unsupported by legal principle,' but that its recognition would lead to injustice whenever an attempt should be made to apply it to actual transactions.
YI. In my judgment there are more than one general statement of legal doctrines as to the effect of the assignment of a mortgage without the assignment of the debt, and the remedy for the mortgage debt after the indemnifying bond was given, found in the majority *171opinion, which are not correct. But I am not called on to point out the errors, as,- in my opinion, these doctrines do not support the conclusion reached by the majority of the court in this case. In my judgment, the effect of an assignment of a- mortgage without the assignment of the debt, and the remedy to be pursued after the execution of the indemnifying bond, and other matters stated in the argument of the opinion, have nothing to do with the question in hand, which is this : Can a mortgagee, when the mortgaged goods have been taken by a sheriff on an execution, against the mortgagor, assign his claim for damages against the makers of an indemnifying bond, given to the sheriff, without making an assignment of the mortgage debt ? The question involves the validity of the assignment, and the right to enforce it by the assignee, and nothing else. The effect of an assignment of a mortgage without the assignment of the debt, and remedies to be pursued by .the mortgagee for the collection of his debt, have nothing to do with the case; and this consideration does not serve to guide to its correct determination. In my opinion, the judgment of the district court ought to be reversed.
Rotheook, J., concurs in this dissent.