Cook v. Clary
Missouri Court of Appeals
Appeal from the Jaelcson Circuit Court. — Hon. Richard H. Field, Judge. (1) For the purpose of simplifying matters it may be well to concede for the sake of the argument, that where a mortgage, having the mere naked right of possession is deprived of that possession, he cannot recover damages for .the loss of the property, for the reason that his possession is not for the purpose of using it, but is for the purpose of foreclosure. Jones on Chat.
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Appeal from the Jaelcson Circuit Court. — Hon. Richard H. Field, Judge. (1) For the purpose of simplifying matters it may be well to concede for the sake of the argument, that where a mortgage, having the mere naked right of possession is deprived of that possession, he cannot recover damages for .the loss of the property, for the reason that his possession is not for the purpose of using it, but is for the purpose of foreclosure. Jones on Chat. Mort. [ 3 Ed.] p. 462. But here the record shows explicitly that the mortgagee’s possession was by the contract, between the parties for the purpose…
1Opinion of the CourtEllison, J.
This is an action in replevin of a pair of horses, which resulted in a judgment for plaintiff by-default in the trial court. Proof of damages was made to the court, and a finding of $10 was made by the court. Plaintiff appeals complaining of the amount of damages assessed.
The defendant Clary is the constable who seized the horses in an attachment suit as the property of a third party, and Tobener is a livery-stable keeper, where the horses were kept by Clary after attaching them. Plaintiff was deprived of the use of the horses for twenty-five days, and also paid out to Tobener $25 for feeding…
2Cases cited3 opinions
- Ray v. ThompsonMissouri Court of Appeals · 1887
- Burkeholder v. RudrowMissouri Court of Appeals · 1885
- Brosnahan v. Philip Best Brewing Co.Missouri Court of Appeals · 1887
3Cited by4 opinions
- Graham v. YatesSupreme Court of Oklahoma · 1912
- Syndicate Improvement Co. v. BradleyWyoming Supreme Court · 1897
- Howard v. Beldenville Lumber Co.Wisconsin Supreme Court · 1908
- Whitlock v. MungivenSupreme Court of Rhode Island · 1914