Page:North Dakota Reports (vol. 2).pdf/465

 proper rule of damages in cases of this character has been again argued before the court. The questions argued arise, for the most part, concerning a team which the jury found was wrongfully taken by the defendant. When the former opinion was handed down, the court understood that, when the team was taken and sold, plaintiff was permanently deprived thereof as owner. Plaintiff's subsequent possession of the team was supposed to be through some arrangement with the purchaser at the execution sale. It is now insisted that the evidence shows that the plaintiff was in fact the purchaser of this team at the sale, and received it back as owner. On further examination of the testimony, we find there is much in it to confirm this view. There is certainly nothing in the verdict, under the instructions, to negative it. If such be the fact, then the rule of damages as given by the trial court was wrong. When a party whose property has been wrongfully taken by an officer, and sold at judicial sale, buys such property in at such sale, he is not entitled, in an action of claim and delivery against the officer, to judgment for the value of the property, but only for the sum which it cost him to regain possession, with interest on such sum from the time of payment. Of course, this does not affect his claim for damages for the detention while he was deprived of possession. This principle has been applied in a number of cases where the action was for conversion. See Ford v. Williams, 24 N. Y. 359; Baker v. Freeman, 9 Wend. 36; McInroy v. Dyer, 47 Pa. St.118. In Sprague v. Brown, 40 Wis..612, it was applied in a case where the plaintiff repurchased the property from a third person who purchased it at the execution sale. In Leonard v. Maginnis, 34 Minn. 506, 26 N. W. Rep. 733, the principle was approved and applied in a case of claim and delivery. It is certainly fair and just, and exactly fulfills the conditions of compensation. The district court will reverse its judgment, and order a new trial. The order heretofore entered in this court will be changed accordingly. Reversed. All concur.