4. Brown vs. Phillips. should be sold, before any damages are awarded against him, on account of the mortgagor's remaining interest in the property, as authorized by section 10, Civil Code. A set-off can only be allowed to a suit upon a contract, and growing out of a contract, as provided in section 128, Civil Code. CHIEF JUSTICE WILLIAMS DELIVERED THE OPINION OF THE COURT: November 11, 1865, James H. Phillips, having purchased a mare, on ten months' time, for one hundred dollars, G. W. Brown became his surety to Jackson Vanarsdale for the purchase price, and took from Phillips a writing which, in effect, mortgages the mare and two thirds of his then sown crop of wheat to secure this payment, which was neither witnessed nor recorded. In March following, Brown peaceably, but without Phillips' consent, took possession of the mare, and continued to hold her, when, June 11, 1866, Phillips sued him in the nature of an action of trespass therefor. One November 6, 1867, Brown put in two separate defenses, beside the general traverse of the cause of action. was an off-set of one hundred dollars for money paid to Vanarsdale as plaintiff's security. The other was founded upon the mortgage, averring that Phillips had failed and refused to pay the debt when it fell due, and VOL. III-42 Brown vs. Phillips. that the defendant had been compelled to discharge it; also, that he had converted the crop of wheat to his own use, by all of which the mortgage had been forfeited. He also prayed that the mare be sold in discharge of the mortgage and for judgment on his debt, &c. The Court sustained a demurrer to each, to which exceptions were entered. After admitting the note and mortgage given for the mare as evidence on the part of Brown, the court, on plaintiff's motion, withdrew these from the jury, to which exception was taken. The jury having found a verdict for plaintiff for one hundred dollars, and the Court having refused to set it aside, Brown prosecutes this appeal. In Swigert and Shreve vs. Thomas (7 Dana, 226) this court held, that, on a mortgage of personal property, after condition broken, the mortgagee may take possession of the mortgage property, if he can peaceably get it, as authorized by the common law, which right has never been repealed by any statute. So in Spalding vs. Scanland (4 B. Mon., 365), it was held, after the mortgage debt became due, and remaining unpaid, the mortgagee may maintain detinue to obtain possession of the mortgage property. This common law right of possession of personal property after forfeiture of the conditions, remains now unmodified by statutory provisions. But as Brown took from Phillips the possession of the mare before forfeiture of conditions, the latter had a technical right of action therefor. The measure of damages, however, is not, as erroneously stated by the court to the jury, the value of the mare and such exemplary damages as they might think Brown's conduct merited; for the title of the mare was in Brown, with only the right of possession in Phillips, until forfeiture and the reversionary interest after payment of the mortgage debt. Brown vs. Phillips. Therefore, as by the suit Phillips would invest Brown with his right, yet this was not the actual value and absolute property in the mare, but only the right of possession until forfeiture and the reversionary interest after payment of the mortgage debt. Whether the cause of action be the mare, or the taking of her by Brown, yet the mortgage and his claim thereunder is connected with it; and therefore, under section 126, Civil Code, he has a right to plead it as a counter-claim. Beside, it is eminently proper that the mortgage be foreclosed, and the mare sold to satisfy it; and this should be done before any damages be awarded Phillips on account of his reversionary interest, and is fully authorized by section 10, Civil Code. As the evidence tended strongly to establish the insufficiency of the mare to discharge the mortgage debt, the injustice of the rule, as announced by the court to the jury, becomes manifest. The demurrer to the second paragraph of the defense was properly sustained, because a set-off can only be allowed to a suit upon a contract, and growing out of a contract, as provided in section 128, Civil Code. But, for the errors suggested, the judgment is reversed, with directions for a new trial and further proceedings as herein indicated. Hughes' adm'r vs. Brown, &c. CASE 48-PETITION ORDINARY-SEPTEMBER 15. Hughes' adm'r vs. Brown, &c. APPEAL FROM MARION CIRCUIT COURT. In an action on a note, executed by a married woman, against her and the assignor of the note, the petition alleged that she was, at the date of the note, a married woman, and that she refused to pay on the ground that her coverture exonerated her from legal liability. Demurrer to the petition ought to have been overruled. The admitted coverture did not, per se, necessarily make the note void; and if it did, she might not have ventured to plead her disability. If she avoided the note, nothing more was necessary to the cause of action against the assignor, who, without any other suit than this, would be responsible. RUSSELL & AVRITT, CITED 1 Parsons on Contracts, p. 586. For Appellant, JUDGE ROBERTSON DELIVERED THE OPINION OF THE COURT: On a promissory note executed by the appellee, Athanasia Brown, to the appellee, the Kentucky Insurance Company, and assigned to the appellant's intestate, George Hughes, his administrator brought this action against the obligee and assignor, and alleged that she was, at the date of the note, a married woman, and that she refused to pay on the ground that her coverture exonerated her from legal obligation. On demurrer to the petition, the circuit court, adjudging it insufficient, rendered judgment against the appellant. That judgment we cannot affirm. The admitted coverture did not, per se, necessarily make the note void; and if it did, she might not have ventured Hibbs, &c., vs. Evans. to plead her disability. A demurrer, therefore, was not the proper mode of taking advantage of it, and, consequently, even as to her, the judgment was erroneous. But had she been first sued alone, and avoided the note, or should she avoid it in this case, nothing more would be necessary to the cause of action against the assignor, who, without any other suit than this, would be responsible; and, therefore, as to the appellant's assignor also, the petition is sufficient. Wherefore, the judgment is reversed, and the cause remanded, with instructions to overrule the demurrer. CASE 49-PETITION EQUITY-SEPTEMBER 15. Hibbs, &c., vs. Evans. APPEAL FROM LIVINGSTON CIRCUIT COURT. The recognition and enjoyment of an abortive allotment of dower, although it was not altogether eligible and just, for more than twenty years, with their presumed knowledge, precludes purchasers, subject to the dower, from changing or disturbing the boundary so defined. W. D. GREER and JOHN RODMAN, CITED For Appellants, 3 Littell, 472; Smith and wife vs. Maxwell. 1 Littell, 168; 3 Dana, 371. Civil Code, secs. 555, 546, 161. HANDLIN & HODGE, For Appellee. |