delivered the opinion of the cohrt.
This is an action of replevin instituted by the appellee to recover the possession of certain property, and damages for its unlawful taking and detention. The defendants to the suit are J. W. Brit-ton, trustee in a* deed of trust executed by the appellee on the 29th day of March, 1884, and the firm of Dreyfus & Ascher, beneficiaries therein. The defendants executed bond' for the forthcoming of the property to abide the result of the suit, and the trustee then proceeded under the power of sale conferred in the deed to sell the property. By this sale twenty-three dollars and thirty cents in excess of the expenses of executing the trust and the balance of the debt claimed by the beneficiaries was realized, and- this was tendered by the trustee to the plaintiff, who declined to receive it.
The plaintiff contended that the whole debt secured by the deed of trust had been satisfied before the property was seized by the trustee, but this is negatived by the verdict of the-jury, and for the purposes of this investigation it must be assumed that such was not the fact.
The real controversy in the court below turned upon the proposition advanced by the plaintiff, that the trustee had no authority to take under the deed more property than was sufficient to satisfy the costs of executing the trust and the unpaid debt, the logical sequence of which proposition, if it be correct in law, is that the plaintiff might recover in this -action any of the property in excess of a sufficiency for the purposes above stated. The court below ruled in accordance with this view, and the result was a verdict for *738the plaintiff for a part of the property and damages for its unlawful taking and detention. In this the court erred.
The power of the trustee was conferred by the deed executed by the plaintiff, and it was to take all the property into his possession if default should be made in the payment of the whole or any part of the debt secured, and to make sale of a sufficient quantity thereof to pay the costs of executing the trusts and the unpaid debt. It was not unlawful for the trustee to do that which by the deed he was authorized and directed to do, and though by such action on his part the plaintiff lias sustained damage, it is damnum absque ■injuria, for which no right to recover exists. He should have provided by his deed for the contingency which he claims to have arisen, to wit: the payment of the greater portion of the debt, by limiting the right of the trustee to take only so much of the property as should be needed, or, failing in that, should have avoided the consequences by paying or tendering to the debtor whatever sum remained due on the secured debt. He was under a legal obligation to pay not only a part but the whole of this debt, and he contracted for the result which should follow his neglect to perform all of this obligation. He failed to do as he had agreed to do; the trustee did as he was authorized and required to do and nothing more. It is difficult to perceive any legal principle upon which a right of action can accrue to him who has failed in the performance of duty as against one who has not. »
But it is contended that under the provisions of § 1732 of the Code of 1880 it was proper to enter up a judgment for so much of the property as was unnecessarily sold for the payment of the debt due to Dreyfus & Ascher, and to sustain this position the case of Bates v. Snider, 59 Miss. 497, is cited. In that case the trustee had sued out a writ of replevin to recover the property conveyed in trust, and the grantor in the deed had executed a forthcoming bond. On the trial it appeared that the debt secured had been reduced by payments, and we held that while the plaintiff should have judgment for the return of all of the property, yet the alternative judgment should only be for an amount sufficient to discharge the debt due, because this was the extent of the plaintiff’s *739interest in the property. But in the case now before us no alternative judgment can be awarded in favor of the defendant, for the reason that he is already in possession of the property in controversy. The principle recognized in Bates v. Snider is applicable only to cases in which a party has rightly recovered a judgment for the possession of property, but has only a limited interest in it for the security of a debt less than its value. It cannot be invoked to create a right of recovery where none exists.
It was not intended by § 1732 of the Code of 1880 to abrogate all distinctions as to forms of action, but only to provide that proper judgments should be rendered in courts of law on issues properly determinable in the form of action tried. Inextricable confusion would result from an attempt to so apply it as to convert actions of replevin into actions of assumpsit, or trespass de bonis asporatatis, some features of each of which actions appear in this case as tried in the court below. The single question to be tried in this case is whether at the time of the institution of the suit the plaintiff was entitled to the possession of the property. He was not so entitled if at that time any part of the debt secured was unpaid. Under the instructions of the court, the jury in each of its verdicts attempted to settle the supposed rights of both parties by finding a part of the issue for the plaintiff and .a part for the defendant. In neither verdict is there a finding that the plaintiff or the defendant is entitled to all the property sued for. We cannot, therefore, render a judgment for the defendant on either verdict.
The judgment is reversed»