Wood v. Franks

Myrick, J.: Plaintiff was the holder of a chattel mortgage of growing crops, made by one Heron to secure the payment of a promissory [218]note for $1,487.25 and interest, which mortgage was recorded. The defendant was sheriff, and as such, there was placed in his hands a writ of attachment against the property of Heron at the suit of another person. As such sheriff, the defendant, without paying, tendering, or depositing the amount of plaintiff’s debt, seized the property mortgaged by virtue of the writ of attachment. Plaintiff demanded payment of his debt, and payment was refused by defendant. Plaintiff thereupon brought this action to recover the amount due him on the note and mortgage for principal and interest. Defendant demurred to the complaint, on the ground that the complaint did not state facts sufficient to constitute a cause of action. The demurrer was sustained, and plaintiff declining to amend, judgment went for defendant. Plaintiff appealed.

The statutes of this State applicable to this controversy are found in the Civil Code; viz.:

Sec. 1,427. An obligation is a legal duty, by which a person is bound to do or not to do a certain thing.

1,428. An obligation arises either from (1) the contract of the parties or (2) the operation of law. An obligation arising from operation of law may be enforced in the manner provided by law, or by civil action or proceeding.

2.968. Personal property mortgaged may be taken under attachment, or execution issued at the suit of a creditor of the mortgagor.

2.969. Before the property is so taken, the officer must pay or tender to the mortgagee the amount of the mortgage debt and interest, or must deposit the amount thereof with the county clerk or treasurer, payable to the order of the mortgagee.

3,333. For the breach of an obligation not arising from contract, the measure of damages, except where otherwise provided by this Code, is the amount which will compensate for all the detriment proximately caused thereby, whether it could have been anticipated or not.

Thus it will be seen that wherever there is an obligation arising from operation of law, and a breach of that obligation, the party injured may, by action, recover the amount which will compensate him for all the detriment proximately caused [219]