
    Hugh Allison vs. John McCune.
    A Bpecial action on the Case lies against one who lessens the mortgage security of another, and damages may be recovered to the extent of any actual injury sustained • by such act.
    This is a Special, Action on the Case, reserved in Washington County.
    The action was originally brought in the Court of Common Pleas of Washington county, and came into the Supreme Court by an appeal. In the Supreme Court, a trial was had to a jury, at the, March term; 1845, and a verdict rendered for the plaintiff for six hundred dollars, subject to the opinion of the Court on the law of the case, arising on an- agreed statement of the facts which accompanies the files, and by the consent of counsel, is submitted as, the evidence in the suit.
    The declaration contains three counts. The first describes a messuage in the possession of Andrew Allison, who had before mortgaged it to the plaintiff for $4,000, and avers that the defendant, McCune, had broken do.wn and destroyed a certain mill erected on the mortgaged premises, and carried away the machinery and fixture of the value of $2,000, and converted them to his own use, whereby the messuage was rendered of less value, and the mortgage security of the plaintiff, impaired to his damage, &c. .
    In Bank.
    Dec. Term, 1846.
    The second count describes the plaintiff as a reversioner, and. complains of-the same acts, as an injury to his reversionary interest: .There is, also, a third count, in trover, .for the conversion by the defendant of certain, milling utensils, machinery, &c., particularly described, to the damage, &c. To this declaration, the-defendant pleaded the-general issue of riot guilty, and the evidence now to be applied to.the issue, in disposing of the. verdict of the jury, is found in .the agreed statement of facts, and Upon which, under the-issue, the law arises.
    It is, in substance, as follows:
    On the trial of this case it was proved that oh the 11th of Mar.ch, 1841, Andrew Allison being in possession of and residing on a farm in Washington county, mortgaged it (] 00 acres) to Hugh Allison, the plaintiff, to secure the payment of a promissory note from Andrew to Hugh, of the same date as the mortgage, for the sum of $4000; which mortgage was recor-. ded May 11th, 1841. The note and mortgage were given to indemnify Hugh for becoming security for Andrew, before that time, to sundry persons. '
    The' mortgage described the land by metes and bounds, and “ to have and to hold- the granted premises, with all appurtenances thereof, to the Said Hugh Allison, his heirs and assigns,” with covenants of warranty. . Proviso for the payment of 'the note of $4000.
    A t the time of executing the mortgage there was a steam grist and saW mill and distillery on the land described. The grist mill used .principally in grinding for the distillery. Andrew remained in possession and use of the land .described in the mortgage, until after the commencement of this suit, exercising ownership as mortgagors-usually do. \ . ■
    .' Ón the 18th of May, 1842, Hugh filed,his bill in the Common Pleas of Washington - county, praying a subpoena against Andrew — that he be compelled to answer — that an account might be taken of what was due Hugh'.for .his' principal and interest due. On the mortgage — that the mortgaged premises be sold, and the proceeds thereof applied to satisfaction of such principal and interest — and for further relief. Andrew was served with process but did not answer, and at the August term of the Court, (22d August,) 1842, a decree was entered pro confesso, against Andrew for $4,334 and costs, to be paid in ten days; and that in default thereof the Master Commissioner proceed to sell the mortgaged premises as upon judgment at law and bring the money arising therefrom into court to abide the order of court. On the 22d of August, 1842, an order was issued to the master who appraised the premises, and offered but did not sell for want of bidders.
    On the 13th December, 1842, a second order issued on which the property was. offered by the master on the 6th of March, 1843, and bid off by Hugh at two-thirds, the'appraised value, $1,334; but not having advanced the costs, the master returned the fact and no sale for want of bidders. April 4, 1844, a third order was .issued, and May 4th the mortgaged property was sold by the master to John Mason for $1,334, being two-thirds the appraised value; and at the May term, 1844, of the Court of Common Pleas the sale was confirmed, deed ordered, and money directed to abide the order of Court on the hearing of the bill of one Park, a judgment creditor of Andrew Allison and Hugh Allison as security. Hugh had paid about $60 on his liability as security for Andrew, and some Attorney’s fees. Andrew’s property is exhausted, and Hugh’s also, unless a sale of some of . his land is set aside as fraudulent, for which a bill is pending by creditors of Andrew and Hugh as security. Hugh’s liability as security for Andrew did not amount, to the sum of the mortgage note; but his liability exceeds the amount of the proceeds of the mortgaged premises, and the amount of the verdict in the present action. Andrew Allison was justly indebted to the defendant, M’Cune, for which Hugh, was not bound, and the defendant, M’Cune, obtained a judgment against Andrew Allison in the Court of'Common Pleas of Morgan county, Feb. 28, 1842, for'$386.97 debt, $7.05 costs. On this judgment an execution was issued to the sheriff of Washington county, dated March 4, 1842, which the sheriff levied, April 1, 1842, on the steam engine and fixtures, the running gear of the grist and saw mill and still worm and tubs of the distillery, by direction of the defendant, M’Cune, and before the return of the writ, on the 21s'tof May, the sheriff, by direction of the defendant, M’Cune, went to the property and scheduled what had been levied on, and removed the same off the mortgaged premises. The stills, tubs, &c., which had been before that time sold on a constable’s execution against Andrew Allison in some other case, were not taken. The steam boiler was set in a furnace of stone and brick on the top of the ground. The engine was also se.t in timbers laid on raised walls on the top of the ground, and the machinery of both grist and saw mill was attached by coupling shafts, drivers and straps. The buildings for the grist and saw mills were frames set on the surface and against a bank, on slight foundations of stone and blocks.
    In severing the property levied on, the furnace for the boilers which was outside the millhouse was removed on the top, leaving the foundation above the ground, and all the other property was taken without injury to the buildings. The writ was returned by defendant’s order without sale, and on the 11th of August, 1842, a vendi. from the Common Pleas of Morgan county was directed to the sheriff of Washington county, to sell the above property so levied and removed. By virtue of this last execution, the sheriff of Washington county, after giving legal notice of the time and place, proceeded to sell the property at public sale, on the 31st of August, 1842 ; at which time the plaintiff, Hugh Allison, appeared and gave notice that he claimed the property, and forbid the sale. The defendant, M’Cune, indemnified the sheriff, and the property was sold to M’Cune and others, who were the highest bidders, in parcels for sums which, in the whole, amounted to $114. Hugh Allison, the plaintiff, at no time after the execution of the mortgage, before this sale, having had actual possession of fhe mortgaged premises, or the property sold as above.
    ' If, upon the ■ above facts, the Court is of opinion that the plaintiff is entitled to recover, then judgment is to be entered on- the- verdict — if otherwise, the verdict is to- be set aside and .'a nonsuit entered. . • .
    C. B: Goddard, .'for Plaintiff,
    I.. Parish, for Defendant.
    ■ No arguments were furnished to the Reporter.
   Wood, C, L.

It is urged by the.’counsel for the defendant, that this action is not sustainable by any known and well • settled,. principle of law. -The absence .of direct, or, at least, •analogous authority, it is certain, with a careful judge, tends to create uncertainty and doubt, not' unfrequently, whether a po- ■ sition assumed as the basis of a -right, to recover can be sustained;.'.' But case's do,'however, often occur, in the multifarious' relations and transactions of mankind', when it is, by no means, Un insuperable ohjection- to the remedy soúght 'to be-obtained, that.'there is no direct adjudication in ' point. Rulés of law must ■ sometimes, ■ of necessity, be -extended to .suit the local condition and meet the exigencies of every'people. The com-, mon law of -England, imported by our ancestors, as.’is- said, is in force in Ohio, but it rests, nevertheless, in the sound discretion of the Court to say how far it is applicable to our condition; It is one of the maxims of the common law, that for every injury a remedy is given, and when the justice of a causé stares me fully in the facej I ■ will say, w-ith Mr.. Justice Eyre, that' “ Ido not feel myself pleased to he knocked down with formal objections.” If.there is no Jinownmode of redress, it is the duty of the Court, in such case, to open some new channel through which a remedy may be obtained. But I am not aware that the plaintiff,, in the case at bar, is driven to the extremity to ask of the Court the adoption of any süch course. It appears to us, the"action may be sustained upon the ordinary principles applicable to a special action on the case, in general. Such an action lies to recover damages for an act done by another, either lawful or unlawful, with force or without, when the damages are not immediate, but as a consequence resulting' from some intervening act, produced by that which is the gist of the action. Examples in the books áre known to every lawyer. The action, by a singular provision of the statute of Ohio, has been extended to cases where trespass will lie, and is now a legal remedy to recover for an assault and battery. But take the action of case, as 'defined, with the general principle that the laiu gives redress for every injury, (but to which rule there are, doubtless, exceptions,) why is the plaintiff, on principle, not entitled to maintain his action ? To simplify the facts, "the - agreed case shows he was a mortgagee of Andrew Allison; the condition of the mortgage was broken and the defendant was a subsequent judgment creditor of Andrew. As against Andrew, the lién of the plaintiff’s mortgage was older than that of the defendant’s judgment. Under these circumstances, the defendant, with his execution, issued upon his judgment, interferes and lessens the plaintiff ’ s security, by removing the fixtures and destroying the mill covered by the plaintiff’s mortgage, so that the.mortgage lien is an insufficient security for the plaintiff’s debt-, and Andrew Allison has no other property of any description. In our opinion, on principle, where such security is thus- diminished, and damages result from the act, to the plaintiff, the action lies. For authority, we have examined only the cases cited. The 2 Greenleaf’s Rep. 173, presents a case directly analagous: M mortgaged to W, and afterwards erected a house on the land. M sold the premises to another, and he sold the house to the defendant, who' removed it. The mortgage was assigned to the.-plaintiff, and it was held he might recover the value of the. house. Idem, p. 387, is a similar case, but the action was trespass.

There is, however, no difference in principle. Possession or right of immediate possession is not always necessary to maintain cases for an injury either to real or personal property. It will lie for an injury to a reversionary interest, in either personalty or realty, though in trespass, without the aid of the Ohio statute, the rule would be different.

But it is said, the machinery of the mill was not realty or fixtures, and did not pass with the mortgage; but the evidence shows, it was placed there for permanent use; that it was attached to the mill and the freehold; and, in this case, the facts show, inevitable loss will probably result to the plaintiff, though permitted to recover in this action.

Judgment for Plaintiff.

Birchard, J.,

dissenting. This action should not be sustained. The plaintiff had no claim but that derived from the mortgage, and he was out of possession. By the uniform decisions of this Court, the mortgagor in possession holds the legal title, as against ail the world, except the mortgagee, and against him till the condition is broken. 2 Ohio Rep. 223 ; 8 Ohio Rep. 222.

There was no such thing as a reversionary interest in the mortgagee. He had no rights save those to be worked out under his mortgage deed. It is well settled that, while out of possession, he cannot maintain trespass. Equally well settled is it, that for an injury, immediate and direct, trespass, and not case, is the only remedy known to the common law. •

Our statute giving the action of case where trespass would lie at common law, seems to break down old and established forms. It was enacted to place, as far as legislation could effect that object, the unskilled and ignorant upon an equality with men of experience and learning — not to create a right of action, which was before unknown, and which would give to one man a remedy that otherwise would belong to his neighbor.

This is manifestly a case of first impression. It is a novelty. There is nothing like it in all the books. Nothing which will bear a close analogy to it, when carefully examined. The mere fact that it is novel, however, would not be a fatal objection, in my opinion, if it were the only one. There is something more serious than novelty to be overcome. The wrong for which this suit was brought, was the detaching of ailedged fixtures. The injury complained of was direct, and done to the realty. The person in possession was the one who had the right of action. He, and he alone, should be allowed to prosecute; and he may, tomorrow, sue for and recover damages to the full extent of all the injury done to the premises. The levy of an execution upon the real property, or upon fixtures — which, as savoring of the realty; would pass by deed conveying the land — could not be justified under the execution. The officer and the defendant treated it as personal chattels; and if it was not such, they were both trespassers ab initio. The proceedings upon execution -will be no defence to a suit brought by the mortgagor, if the property sold was what the plaintiff claimed it to have been, and the rule of damages cannot bo less than the amount of the whole injury that was sustained.

My brethren argue that this proceeding would be no bar to an action by the mortgagor. They claim, however, that it would bar a recovery, so far as the damages to the reversionary interest are concerned. As I have before said, there is no reversionary interest in the mortgagee. The owner of the land, the mortgagor, has the interest affected by the supposed tres-» pass. It was his right to protect the property, pledged for the payment of his own debt, from waste; his right to have the whole of it, either to use in payment of his debts or otherwise, as might not be inconsistent with his own contracts, and no trespasser can gainsay that right.

To make the matter apparent to any one, let me suppose the act complained of to have been done by a wanton trespasser; that the mortgagor in possession prosecutes for the injury, and proves the damages to be equal to half the original value of the ?and and its appurtenances. The rule of damages would be such sum as would be equivalent to the injury. This Court .Would-direct the jury to’ assess 'that amount, at,'all events. The that' the land was'üíider a.'mortgage for .¡pore than its value, ''would mot-affect, the- rule. ' If,.the mortgage, should be offered' for.-such .¿- purpose, 'it. would; be ruled out*- and ' the trespasser Áyduld.-b.e''tóld 'that iC'was'the/priyilege.-qf his.advefsary.tp have W'.oWn'-'propefty' applied ,tp -the payment .-or-security of his -debts’,and that-it'was as valuable ;tó him for that purpose as-for any other. The recovery, therefore,' jVoiild be. fpf the whole amount of the damage. • ' - '

■ Now, if this .plaintiff’s, action is allowed, there is nothing in the' case which' I have .supposed to prevent the mortgagee from prosecuting andtréeóvering damages for the same injury.. The mortgaged' premises .being of.less'-value than' the debt, secured by it, and the-only means of payment* the inju.fy to the mortgagee must be held;.'under the theory of my,brethren, coextensive with the- supposed trespass. Thus, there, would be two actions, and two recoveries of full'damages; in, addition tp smart-money for the same mattér, cause and thing, by different, plaintiffs. Suqh. a. thing would mot be a-mere novelty. It would . •be an'absurd violation of justice — a wrong which would demand a new remedy; and if the Legislature would not give it, the Court would-feel itself called upon to retrace its steps, or to make such further advance as would meet 'aft evil of -its own creation. y .: ' ■

•" It is said, 'that if the, plaintiff has any remedy it.m.ustf -be-.' by this action. . ' ' • .

Cases to sustain it áre cited from other States, in which, for like injuries, trespass lias been maintained. ' It is admitted that in all 'those States, the legal estate and'right- of, possession are regarded-as in the mortgagee,; and', that'the"different rulépn Ohio renders case the proper action here.. ■ :

’ It may be, that the plaintiff will-'have no' .remedy if this, action could .not be sustained. If so, he would be placed in the same condition that many other creditors have been who took insufficient measures-to secure the debts dire them. He might have done better. There was no law to hinder him from contracting. for the possession or control of the property pledged • to him as security. It was his own folly.'to leave it in the hands of his creditor. ■

The cases quoted from other States, violate no correct princi- • pie and lead to no absurdity. They give the legal action to him holding the title and the possession, and, as a consequence, would deny it to the opposite party. ■ They would send the latter, holding, as they do, that he had but an equity of re-. demption, into a court of equity to enforce any right belonging' to him. That should be done in. this State, under our decisions, by the mortgagee. One having but an equity, and .no legal title or actual possession, should not be permitted to re sort to a court of law and prosecute an action upon a mere equitable claim, contingent in its nature, and which at any moment may be utterly extinguished by the payment of the debt.  