Baumgartner v. Vollmer

• Decision Date: 28 May 1897
• Citation: 5 Idaho 340,49 P. 729
• Parties: BAUMGARTNER v. VOLLMER
• Court: Idaho Supreme Court

49 P. 729

5 Idaho 340

BAUMGARTNER v. VOLLMER

Supreme Court of Idaho

May 28, 1897

CHATTEL MORTGAGE-ATTACHMENT-ELECTION OF REMEDIES.-When a creditor seeks to subject the property of his debtor to the payment of his claim, upon which property there exists a chattel mortgage, and the creditor, to avail himself of the remedy provided by section 3389 of the Revised Statutes, pays to the mortgagee the amount of such mortgage, such payment by the creditor discharges the mortgage and the lien thereunder; and the creditor cannot thereafter enforce the mortgage lien.

(Syllabus by the court.)

APPEAL from District Court, Latah County.

Reversed and remanded, with instructions.

S. S Denning, for Appellant.

When the attaching creditor redeemed the property he could only sell under his attachment. (Code, sec. 3389.) When a statute gives a right or a remedy which did not exist at common law and provides a specific method of enforcing it, the mode of procedure provided by the statute must be strictly pursued. (23 Am. & Eng. Ency. of Law, 402; People v Craycroft, 2 Cal. 243, 56 Am. Dec. 331; Ward v. Severance, 7 Cal. 127; Roberts v. Laudecker, 9 Cal. 262; State v. Poultner, 16 Cal. 516; Reed v. Omnibus R. R. Co., 33 Cal. 212; Smith v. Omnibus R. R. Co., 39 Cal. 281; Hastings v. Cunningham, 29 Cal. 137; Clear Lake Water Co. v. Lake Co., 45 Cal. 90.) When the attaching creditor redeemed the mortgaged property from the mortgagees, it became a cancellation of the note and mortgage. Payment of the debt secured by mortgage extinguishes the mortgage. (McMillan v. Richards, 9 Cal. 365, 70 Am. Dec. 655, and note; McCarthy v. Christie, 13 Cal. 80; Johnson v. Sherman, 15 Cal. 287, 76 Am. Dec. 481; Dutton v. Warschaues, 21 Cal. 909; Willis v. Farley, 24 Cal. 491; Barber v. Babel, 36 Cal. 4.) The officer was only ordered by his writ to take such property "as was not exempt by law." (Code, sec. 4305.) What property is exempt in Idaho? (Code, sec. 4480.) And to a farmer. (Code, sec. 4480, subd. 3.) All authorities and text-writers hold the law to be that a party may mortgage his exempt property, and that such encumbrance is not a waiver or abandonment of his right to claim his right of exemption in the property so mortgaged. (Freeman on Executions, 2d ed., secs. 214, 214a; Collett v. Jones, 2 B. Mon. (Ky.) 19, 36 Am. Dec. 586; Voughn v. Thompson, 17 Ill. 78; Hill v. Johnston, 29 Pa. St. 362; Patten v. Smith, 4 Conn. 450, 10 Am. Dec. 166; Washburn v. Goodhart, 88 Ill. 229; Haswell v. Parsons, 15 Cal. 266, 76 Am. Dec. 480.)

Eugene O'Neill, for Respondent.

In general, when any person having a subsequent interest in the premises, and who is therefore entitled to redeem for the purpose of protecting such interest, and who is not the principal debtor primarily and absolutely liable for the mortgage debt, pays off the mortgage, he thereby becomes an equitable assignee thereof, and may keep alive and enforce the lien so far as may be necessary in equity for his own benefit; he is subrogated to the rights of the mortgagee to the extent necessary for his own equitable protection. (Ellsworth v. Lockwood, 42 N.Y. 89, 97.) The effect of an equitable assignment by subrogation is to give the person paying the mortgage indebtedness the same rights as under an absolute assignment. (See Pomeroy's Equity Jurisprudence, secs. 1210, 1211, 1213; Ellsworth v. Lockwood, 42 N.Y. 89, 97; Carpenter v. Langdon, 16 Wall. 271, 275.) The process is only a mode of enforcing a lien. (Deering v. Wheeler, and Dotson v. Wheeler, 76 Iowa 496, 41 N.W. 200, 201.) Where a right existed at common law and a new remedy is given by statute, the new remedy is not exclusive but cumulative. (Deering v. Wheeler, 76 Iowa 496, 41 N.W. 201; doctrine announced in People v. Craycroft, 2 Cal. 243, 56 Am. Dec. 33; 2 Cobbey on Chattel Mortgages, sec. 755.) The assignee of the mortgagee has the same rights as the mortgagee, both under the terms and powers in the mortgage contained and under the law. (Rev. Stats., secs. 3360, 3363; Sess. Laws, 1895, pp. 54, 55.) A chattel mortgage is a conditional sale transferring the title to the property. (Jones on Chattel Mortgages, secs. 1, 699; Bryant v. Carson Riv. Lumber Co., 3 Nev. 313, 93 Am. Dec. 403.) Assignment of note secured by chattel mortgage carries with it the mortgage and power of sale in the mortgage and makes it available to the assignee; the power is coupled with an interest. (Bergen v. Bennett, 1 Caines Cas. 1, 2 Am. Dec. 281; Niles v. Ransford, 1 Mich. 338, 51 Am. Dec. 95; 4 Kent's Commentaries, *147; 1 Devlin on Deeds, sec. 389, and note 5; Fogarty v. Sawyer, 17 Cal. 589.)

HUSTON J., SULLIVAN, C. J. Sullivan, C. J., Quarles, J., and Huston, J., concurring.

OPINION

HUSTON, J.

On the 29th of October, 1894, the plaintiff executed and delivered to the Bank of Genesee and to the Genesee Mercantile Company a joint chattel mortgage to secure the sum of $ 474.38 on certain personal property; and on the 10th of November, 1894, plaintiff gave to Frank Brothers Company, a private corporation, a chattel mortgage to secure the sum of $ 260.50. The property described in and encumbered by the foregoing mortgages included all of the personal property of plaintiff exempt from execution under the laws of the state of Idaho. On the seventh day of November, 1894, the defendant commenced an action in the district court for Latah county against plaintiff for the recovery of the sum of $ 677, besides interest and costs, and did issue an attachment, and caused the same to be levied upon all of the property of plaintiff described in said two mortgages aforesaid. In compliance with the provisions of section 3389 of the Revised Statutes of Idaho the defendant, at the time of attaching said property, tendered to the mortgagees in said mortgagees the amount due thereon, which sum was accepted by said mortgagees. On the eighth day of December, 1894, the defendant obtained a judgment in said action against the plaintiff for the sum of $ 677, interest and costs, upon which judgment execution was issued and levied upon said property heretofore described, and the same was noticed for sale, which sale was by direction of the attorney of defendant postponed until the tenth day of January, 1895. That on the twenty-seventh day of December, 1894, the defendant, by Fred W. Piper, his attorney, did deliver to the sheriff of said county copies of said two chattel mortgages, together with the affidavit of said attorney, and directed said sheriff to take possession of the property described in said mortgages, and to sell the same. On the 31st of December, 1894, the plaintiff, by his attorneys, Denning & Wisswell, served written notice and demand upon the sheriff for the delivery of the property so seized by him under said affidavit and notice, upon said chattel mortgages, alleging in said demand and notice the insufficiency of the affidavit, and that the notes to secure which said mortgages were given had been fully paid. On the fourth day of January, 1895, the said sheriff proceeded to sell, and did sell, all of the property described in said mortgages, under and by virtue of the power of sale contained therein. It does not appear that any other or further proceedings were had under said execution, or that any sale was had or made there-under, or any return made thereof. Plaintiff brings this action to recover from the defendant the value of the property so as aforesaid seized and sold under said chattel mortgages. To the complaint of the plaintiff the defendant interposed a general demurrer, which was sustained by the court, and, the plaintiff declining to further plead, judgment was entered for the defendant, from which judgment this appeal is taken.

Many questions are raised in the briefs of counsel which, in our view of this case, have little bearing in its decision. The only question involved, as we view it, is one of construction of the statute. Section 3389. of the Revised Statutes of Idaho provides that "all mortgaged personal property may be attached at the suit of any creditor of the mortgagor such creditor, however, must pay or tender to the mortgagee, the amount due him on such mortgage before the officer making such attachment is entitled to the actual possession of such property. When the property thus attached and redeemed by the creditor is sold by the officer under due legal proceedings, he must: 1. Pay to such creditor the amount advanced by him to pay the mortgage, with lawful interest thereon; 2. Pay all costs appertaining to the judgment, execution and sale; 3. Pay the judgment creditor the amount of his judgment, and the surplus, if any, to the judgment debtor; if the creditor of the mortgagor prefer, he may cause to be attached the equity of redemption of the mortgagor; such attachment is made by serving upon the mortgagor and mortgagee a...