Blackfoot City Bank v. Clements

• Decision Date: 27 May 1924
• Parties: BLACKFOOT CITY BANK, a Corporation, Respondent, v. A. CLEMENTS, Sheriff of Blaine County, Idaho, Appellant
• Court: Idaho Supreme Court

226 P. 1079

39 Idaho 194

BLACKFOOT CITY BANK, a Corporation, Respondent, v. A. CLEMENTS, Sheriff of Blaine County, Idaho, Appellant

Supreme Court of Idaho

May 27, 1924

CLAIM AND DELIVERY-OWNERSHIP-POSSESSION-QUALIFIED OWNERSHIP-FORECLOSURE OF CHATTEL MORTGAGE-VOID PROCEEDINGS-VALIDITY OF CHATTEL MORTGAGE-IDENTIFICATION OF PROPERTY-FINDINGS OF FACT AND CONCLUSIONS OF LAW-EVIDENCE-VALUE-DAMAGES-SUFFICIENCY OF COMPLAINT-MOTION FOR NONSUIT-DEMURRER.

1. Where a chattel mortgage contains a stipulation providing that upon the happening of certain contingencies therein named the mortgagee may take possession of said property and sell and dispose of it for the best price obtainable by due process of law, upon the happening of such contingency the mortgagee may maintain an action of claim and delivery to recover possession of the mortgaged property from an officer claiming to hold the same under execution who refuses to deliver up the property upon demand of the mortgagee or to pay the mortgage debt.

2. An action in claim and delivery may be maintained by one having a qualified property in the goods, if he has the right of possession.

3. Where an attempt is made to foreclose a chattel mortgage by the mortgagee and such proceedings are void, the parties to the mortgage were left in the precise position occupied by them before the foreclosure was attempted.

4. Where a chattel mortgage is given upon a part of a band of sheep but before the execution of such mortgage the sheep covered thereby were separated, counted and identified by the mortgagee and one of the mortgagors, the fact that such sheep were thereafter put back into the herd would not render the mortgage void for want of certainty where the mortgaged sheep were branded with one brand and the remainder of the herd were branded with two brands.

5. When a motion for nonsuit is made at the close of plaintiff's evidence and is denied, and the defendant thereafter submits evidence in support of his defense, he waives his motion for a nonsuit unless he renews it at the close of all the evidence.

6. The general rule of damages in actions of replevin, where the plaintiff recovers judgment for the value at the time of the taking, is legal interest on such valuation during the time of the detention.

APPEAL from the District Court of the Fourth Judicial District, for Blaine County. Hon. H. F. Ensign, Judge.

Action in claim and delivery. Judgment for plaintiff. Affirmed.

Judgment of the lower court affirmed. Costs awarded to respondent.

W. H Witty and White & Bentley, for Appellant.

The mortgage sought to be foreclosed by the plaintiff on June 6 1921, was void and unenforceable and no lien was acquired upon the sheep in question by said mortgage. The sheep covered thereby were never separated, designated, segregated marked or described so as to distinguish them from other sheep in the same herd. (Dawson v. Cross, 88 Mo.App. 292; Young v. Bank of Princeton, 97 Mo.App. 576, 71 S.W. 713; Union State Bank v. Hutton, 61 Neb. 571, 85 N.W. 535; South Omaha Nat. Bank v. Gillin, 77 Neb. 6, 108 N.W. 257; Jacobsen v. Christensen, 18 Utah 149, 55 P. 562; Williamson v. Steele, 3 Lea (Tenn.), 527, 31 Am. Rep. 652; Bleakely v. Patrick, 67 N.C. 40, 12 Am. Rep. 600; Sigel-Campion Livestock Commission Co. v. Holly, 44 Colo. 580, 101 P. 68; Massachusetts Sheep Co. v. Humble, 36 Mont. 201, 92 P. 527; Burlington State Bank v. Marlin Nat. Bank (Tex. Civ. App.), 207 S.W. 954; State v. Norman (Mo.), 232 S.W. 452; In re Petersen, 252 F. 849; Commercial Sav. Bank v. Brooklyn Lumber etc. Co., 178 Iowa 1206, 160 N.W. 817; Smith v. McCoy-Kissinger Lumber Co., 108 Ark. 162, 157 S.W. 735; Cass v. Gunnison, 68 Mich. 147, 36 N.W. 45; Moebus v. Collins, 85 N.J.L. 528, 89 A. 986; Moore v. Brady, 125 N.C. 35, 34 S.E. 72; Parker v. Chase, 62 Vt. 206, 22 Am. St. 99, 20 A. 198; McDonald v. Tower Lumber etc. Co., 10 Wash. 474, 38 P. 1122.)

The attempted chattel mortgage foreclosure and sale of said sheep June 6, 1921, in Blaine county by the sheriff of Bingham county was void. (Farmers' State Bank of Ingersoll v. Wilson, 34 Okla. 755, 127 P. 395; Ex parte Tilghman, 103 Kan. 906, 177 P. 9; Daigle v. Summit Mercantile Co., 144 Minn. 178, 174 N.W. 830; Boutwell v. Grayson, 118 Miss. 80, 79 So. 61; State v. Duncan, 195 Mo.App. 541, 193 S.W. 950; Goetchins v. White, 11 Ga.App. 456, 75 S.E. 674; 24 R. C. L., p. 918, sec. 7; Miles Planting & Mfg. Co. v. Ware, 142 La. 1026, 78 So. 104; Swanson v. Douglas, 150 Ga. 650, 105 S.E. 161.)

John W. Jones, Guy Stevens and Whitcomb, Cowen & Clark, for Respondent.

The plaintiff could maintain this action in claim and delivery. (First Nat. Bank of St. Anthony v. Stears, 9 Idaho 519, 75 P. 225.)

"An attempted foreclosure of a chattel mortgage, if void, will not affect the mortgagee's title under the mortgage, the condition of which had been broken, while if it was valid it passed the property to the mortgagee who purchased it at the sale." (Henry Jennings & Sons v. Weinberger, 75 Ore. 556, 146 P. 1087; Averill Machinery Co. v. Freebury Brothers, 59 Mont. 594, 198 P. 130; Park v. Parsons, 10 Utah 330, 37 P. 570; Kelsey v. Ming, 118 Mich. 438, 76 N.W. 981; Cavanagh v. Sanderson, 152 Mich. 11, 115 N.W. 955; Stackpole v. Robbins, 48 N.Y. 665; 2 Jones on Mortgages, 7th ed., sec. 953.)

Regardless of whether at the time of the seizure of the sheep by the defendant sheriff the said sheep could be identified, the plaintiff's mortgage still remained a valid lien upon the property as against the subsequent execution creditor. (Ayre v. Hixson, 53 Ore. 19, 133 Am. St. 819, Ann. Cas. 1913E, 659, 98 P. 515.) "The intermingling, after the execution of a mortgage, of the animals subject thereto with others cannot render the mortgage void for uncertainty." (Frick v. Fritz, 115 Iowa 438, 91 Am. St. 165, 88 N.W. 961; Tootle v. Buckingham, 190 Mo. 183, 88 S.W. 619; Ilfeld v. Ziegler, 40 Colo. 401, 91 P. 825; Creighton v. Cole, 10 Wash. 472, 38 P. 1007.)

The proper measure of damages for detention is interest upon the value of the property at the legal rate from the time of the taking until the judgment is rendered. (Johnson v. Bailey, 17 Colo. 59, 28 P. 81; 2 Sedgwick on Damages, 9th ed., sec. 538.)

BUDGE, J. McCarthy, C. J., and William A. Lee, J., concur.

OPINION

BUDGE, J.

On July 15, 1920, Joseph G. Scott and A. E. Fridenstine, copartners engaged in the sheep business, were the owners and in possession of a band of sheep. On this day they made executed and delivered to respondent their chattel mortgage covering certain of the sheep owned by them to secure the payment of a promissory note of even date for $ 14,800 due on demand, which was executed and delivered by them to respondent. This chattel mortgage was duly recorded in Bingham county. At the time of the giving of this note and mortgage the remainder of the sheep were mortgaged to Hatcher & Snyder to secure the purchase price thereof. When the sheep were mortgaged to respondent they were segregated and properly identified and thereafter returned to the herd which was made up of sheep covered by the Hatcher & Snyder mortgage and the sheep covered by respondent's mortgage. The sheep mortgaged to respondent were branded GIB and the sheep mortgaged to Hatcher & Snyder were branded IV and GIB. Subsequently to the execution of the mortgages herein referred to Scott transferred his interest in the property to Fridenstine. An agreement or arrangement was made between respondent, Hatcher & Snyder and Fridenstine that, as a basis for feeding the sheep during the winter of 1920-1921, respondent should pay four-sevenths of the cost of the hay and Hatcher & Snyder should pay three-sevenths and Fridenstine was to care for the sheep at his own expense. It further appears from the record that on May 28, 1921, the sheriff of Bingham county, at respondent's request, served Fridenstine with a copy of an affidavit and notice of foreclosure in an attempt to foreclose respondent's chattel mortgage. On June 6, 1921, the sheriff made a purported sale under the foreclosure proceedings of four-sevenths of the sheep in the possession of Fridenstine while the same were in Blaine county, which were purchased on behalf of respondent under its mortgage. Respondent thereupon placed an agent in charge of the sheep so purchased and Fridenstine continued in charge of the sheep mortgaged to Hatcher & Snyder and it was agreed between respondent and Fridenstine that the sheep should be kept in one herd and that the expenses of caring for the same and the shearing thereof should be paid in the ratio of four-sevenths by respondent and three-sevenths by Fridenstine. On June 9, 1921, while the sheep were in Blaine county and jointly in the possession of respondent and Fridenstine an execution was issued out of the district court of the fifth judicial district in and for Bannock county upon a judgment rendered against Fridenstine in an action wherein the Citizens Bank of Pocatello was plaintiff and Fridenstine was defendant, which execution was placed in the hands of appellant who thereafter levied upon the sheep and gave notice of sale under execution. Immediately subsequent to the seizure of the sheep by appellant, respondent instituted this action in claim and delivery to recover possession of the sheep covered by its mortgage from appellant, or in lieu thereof, damages in the sum of $ 10,242, the alleged value of the sheep. At the same time respondent filed the necessary affidavit and furnished the necessary undertaking on claim and delivery and directed the coroner of Blaine county to take the sheep into his possession. The coroner thereupon took possession of the sheep described in respondent's mortgage, so held under execution by appellant, but was later...