Barber v. Amundson

• Decision Date: 25 January 1893
• Citation: 54 N.W. 733,52 Minn. 358
• Parties: Charles E. Barber v. A. I. Amundson et al
• Court: Minnesota Supreme Court

54 N.W. 733

52 Minn. 358

Charles E. Barber v. A. I. Amundson et al

Supreme Court of Minnesota

January 25, 1893

Argued January 5, 1893

Appeal by plaintiff, Charles E. Barber, from an order of the District Court of Chippewa County, Powers, J., made August 20, 1892, denying his motion for a new trial.

On September 5, 1891, J. Strootman made and delivered to the plaintiff his promissory note for $ 200 and interest, due three months thereafter, and to secure its payment he, on that day in good faith mortgaged to plaintiff six hundred bushels of wheat stored in a granary on the northeast quarter of section twelve (12,) T. 118, R. 39, in the Town of Havelock in Chippewa county. The mortgage was duly filed. Thereafter, on September 12, 1891, the defendant Charles A Stoppe commenced an action in the District Court against said Strootman upon contract and obtained a writ of attachment against his property, and the defendant, A. I. Amundson, as sheriff, thereunder attached and took into his possession two hundred and twenty-five bushels of the wheat so mortgaged. He found the wheat in the granary in Strootman's possession. On December 24, 1891, Stoppe recovered judgment in that action against Strootman for $ 151.80, and caused a writ of execution to be issued thereon and delivered to Amundson for service. While the sheriff so held the wheat under the attachment the mortgagee commenced an action against the sheriff and replevied the wheat, but in November, 1891, that action was dismissed and the coroner returned the wheat to the sheriff. Afterwards, on January 4, 1892, while the sheriff held the two hundred and twenty-five bushels of wheat under the writ of execution, the mortgagee duly demanded possession of it under his mortgage then past due, and being refused he commenced this action and caused this wheat to be again taken by the coroner from the sheriff under a writ of replevin herein, but it was rebonded and again returned to the sheriff. By stipulation Stoppe was made a defendant herein with the sheriff. The issues were brought to trial May 10, 1892, before the court and a jury. At the close of the plaintiff's evidence the court on defendant's motion dismissed this action on the ground that as the sheriff took possession of the wheat before plaintiff took it on his mortgage, he had the right to retain the possession and sell the wheat on execution, but subject to the mortgage. Plaintiff excepted to this decision and moved for a new trial. Being denied, he appealed.

Order affirmed.

C. A Fosnes and L. H. Bentley, for appellant.

This action as it is now presented involves a construction of 1878 G. S. ch. 66, § 309, as amended by Laws 1883, ch. 60 § 1. The contention of the plaintiff is, that the construction given it by the court below is erroneous. As soon as default was made in payment of the mortgage, the mortgagee had the right to take possession of the property covered by it, wherever it could be found; and that the plaintiff's right of possession in this case is superior to that of the sheriff. Under the common law, before the amendment of 1883, no right to levy upon mortgaged property existed. It is purely a statutory right, and hence must be strictly construed. The statute provides that the right and interest of the mortgagor may be sold on execution; no more can be sold. All the interest the mortgagor had in the property in dispute was a right to its possession until default was made in the mortgage; after default he had no right. The only right which can be sold, I maintain, is the right of the mortgagor to the possession of the property until default, and his right to pay the mortgage and redeem the property. The purchaser at the execution sale cannot even in such cases take possession of the property until he complies with the terms and conditions of the mortgage, which as a matter of course would be the payment of the mortgage debt. Leadbetter v. Leadbetter, 125 N.Y. 290.

The fact that the attachment was made upon the property in the present case before default, does not place the defendants in any better position, for the reason that the law does not authorize the attachment of mortgaged property, and that therefore they acquired no rights under it. The distinction between attachment and execution is plain; an attachment is made at the commencement of the litigation, and property might be tied up in court for years, while an execution is levied upon the property after judgment has been obtained at the end of the litigation, and hence the right under it is generally settled in a few days. It can be plainly seen why the Legislature should refuse to extend the remedy of creditors so as to include attachments. Saxton v Williams, 15 Wis. 292; Tannahill v. Tuttle, 3 Mich. 104; Sperry v. Ethridge, 70 Iowa 27; Randall v. Cook, 17 Wend. 53; Peckinbaugh v Quillin, 12 Neb. 586; Wood v. Weimar, 104 U.S. 786; Rankine v. Greer, 38 Kan. 343; Ament v. Greer, 37 Kan. 648.

L. H. Schellbach, for respondent.

There is no dispute as to the facts in this case. But one question of law is involved, and that is the construction of Laws 1883, ch. 60, § 1. The court below construed the provision in accordance with the plain meaning thereof, and in this he committed no error. In Minnesota all the right a mortgagor has in mortgaged chattels is an equity of redemption. It is an equity of redemption before default as well as after default and condition broken. This statutory provision giving the mortgagor's creditors this new remedy of seizing equitable interests, was intended to remedy an existing evil, whereby creditors were enabled to collect honest debts, from persons keeping their property mortgaged. The statutory provision in reference to this matter is as much a part of the appellant's mortgage as the insecurity clause, or the default provision. Mortgagees take their mortgages with this provision in favor of creditors staring them in the face, and therefore cannot be heard to say that the construction given to this statute by the court below destroys vested rights. The broad language of this statute gives the...