Brockman v. Caviness

• Decision Date: 18 March 1940
• Docket Number: 6771
• Citation: 100 P.2d 946,61 Idaho 254
• Parties: FRED BROCKMAN, Respondent, v. A. S. CAVINESS, Sheriff of Washington County, and ELLA BALL, Appellants
• Court: Idaho Supreme Court

100 P.2d 946

61 Idaho 254

FRED BROCKMAN, Respondent, v. A. S. CAVINESS, Sheriff of Washington County, and ELLA BALL, Appellants

No. 6771

Supreme Court of Idaho

March 18, 1940

CHATTEL MORTGAGES-FORECLOSURE-STATUTES-CONSTRUCTION.

1. The provisions of statute for summary foreclosure of chattel mortgage are mandatory and must be strictly followed. (I. C A., sec. 44-1009.)

2. Where the language of a legislative enactment is clear, the court cannot speculate upon the intentions of the legislature, but must accept the interpretation of the act as it appears therein.

3. The procedural provisions of supplemental statute regarding foreclosure of mortgages on both real and personal property securing a single debt are mandatory and exclusive and must be strictly followed. (I. C. A., sec. 44-1101.)

4. Under statute providing that, if a debt is secured by mortgages on both real and personal property, all mortgages may be foreclosed in one action, or chattel mortgage may first be foreclosed by notice and, if there is any balance unpaid, action may be maintained for foreclosure of real estate mortgage, action to foreclose chattel mortgage could not be maintained after foreclosure of real estate mortgage securing same debt where the real estate did not sell for enough to pay the debt. (I. C. A., secs. 9-101, 44-1009 to 44-1013, 44-1101.)

APPEAL from the District Court of the Seventh Judicial District, for Washington County. Hon. A. O. Sutton, Judge.

Suit to enjoin and restrain foreclosure of chattel mortgage. Judgment for plaintiff. Affirmed.

Judgment affirmed. Costs awarded to respondent.

Frank Harris, for Appellants.

The respondent holds and the court below held by its judgment that section 44-1101, I. C. A., is mandatory and that because the appellant Ball did not foreclose her chattel mortgage before she foreclosed her real mortgage or at the same time that she was barred from the right of recovery against the chattels. This holding is based upon subsequent legislation inhibiting deficiency judgment in foreclosures of real mortgages. Appellants contend that the section cited is directory rather than mandatory and should be construed in the light of section 70-102, I. C. A.

Ed. R Coulter, for Respondent.

By bringing action to foreclose the real estate mortgage and failing to therein foreclose the chattel mortgage defendant and appellant Ball waived the lien of her chattel mortgage. (Sec. 44-1101, I. C. A., chap. 179, Sess. Laws 1929; secs. 6379 and 6380, I. C. S. 1919; Greathouse v. Heed, 1 Idaho 494; Empire Copper Co. v. Henderson, 15 Idaho 635, 99 P. 127; Wood v. Independent School Dist. No. 2, 21 Idaho 734, 124 P. 780.)

That by having first foreclosed the real estate mortgage defendant and appellant Ball waived all rights she had to foreclose her chattel mortgage given to secure the same indebtedness. (Portland Cattle Loan Co. v. Biehl, 42 Idaho 39, 245 P. 88; Cederholm v. Loofborrow, 2 Idaho 191, 9 P. 641.)

HOLDEN, J. Ailshie, C. J., and Budge, J., concur. GIVENS, J., Morgan, J., Dissenting.

OPINION

HOLDEN, J.

November 1, 1934, respondent Brockman executed and delivered his promissory note for the sum of $ 4,906.67 to one Charles E. Ball. To secure the payment of the note and interest Brockman gave both a real estate and chattel mortgage. The note and mortgages were later transferred and assigned to appellant Ella Ball. Brockman thereafter made default in the payment of the note. April 8, 1939, appellant commenced suit in the District Court of the Seventh Judicial District, in and for Washington County, to foreclose the real estate mortgage. May 1, 1939, a decree of foreclosure was entered in favor of appellant Ball and against respondent Brockman for a total of $ 5,580.56. May 27, 1939, the mortgaged real property was sold at sheriff's sale for $ 4,500, leaving a balance due of $ 1,080.56.

June 2, 1939, appellant Ball proceeded to foreclose the chattel mortgage by notice and sale, under sections 44-1010, 44-1011, 44-1012 and 44-1013, I. C. A. On the same day the sheriff of Washington county, A. S. Caviness, gave notice the mortgaged chattels would be sold June 10, 1939. June 9, 1939, respondent Brockman commenced this suit against appellant Ball and Caviness, as sheriff of Washington county, to enjoin and restrain the sale of the mortgaged personal property. The same day an order to show cause issued, returnable the next day, at which time the court entered an order continuing the temporary restraining order in force until the further order of the court. August 24, 1939, respondent moved for judgment on the pleadings, the motion being at once argued by counsel for the respective parties and submitted to the court for decision. September 12, 1939, final judgment was entered making the temporary injunction permanent, from which this appeal is prosecuted.

Tracing the history of our procedure for the foreclosure of chattel mortgages, we find section 468 (now sec. 9-101, I. C. A.) of the 1881 Code of Civil Procedure, provided:

"There can be but one action for the recovery of any debt, or the enforcement of any right secured by mortgage upon real estate or personal property, which action must be in accordance with the provisions of this chapter. . . . "

Under that statute all chattel mortgages were required to be foreclosed by suit. At the time no other remedy was provided. In other words, the holder of a chattel mortgage had but one remedy for the enforcement of his right to subject mortgaged personal property to the payment of the debt, to secure the payment of which, the chattel mortgage was given, to wit: A suit in a court of competent jurisdiction. But in 1885 the territorial legislature (Sess. Laws 1885, p. 74) set up the machinery for summary foreclosure of chattel mortgages by notice and sale. The part of section 6 (now sec. 44-1009, I. C. A.) of the 1885 statute, pertinent here, provided:

"Any mortgage of personal property, when the debt to secure which the mortgage was given is due, may be foreclosed by notice and sale as hereinafter provided, . . . . "

The statute providing for the summary foreclosure of chattel mortgages being incomplete in that it did not prescribe procedure to be followed where the payment of a debt was secured by both a chattel and real estate mortgage, the state legislature enacted a supplemental statute (Sess. Laws 1929, chap. 179, sec. 1, p. 317, now sec. 44-1101, I. C. A.). It provided:

"Proceedings for the foreclosure of chattel mortgages by notice and sale, pursuant to Chapter 10 of this title and amendments thereto if any, are not actions within the meaning of Section 9-101. If there be a balance unpaid on any debt or obligation secured by chattel mortgage after foreclosure of the mortgaged personal property by notice and sale under the provisions of said Chapter 10 and amendments thereto if any, and the application of the proceeds thereof on the mortgage debt or obligations and there be no mortgage on real estate securing the same debt or obligations, an action may be brought on such debt or obligation for the unpaid balance.

"If a debt or obligation be secured by mortgages on both real and personal property, all said mortgages may be foreclosed in one action in the district court having jurisdiction, or in lieu thereof, the chattel mortgage or mortgages may first be foreclosed by notice and sale under the provisions of the aforesaid chapter 10 and amendments thereto if any, and if there be any balance unpaid on the mortgage debt or obligation after application of the proceeds derived through such proceedings, an action may then be maintained in the district court having jurisdiction, for the foreclosure of the real estate mortgage to satisfy the balance remaining unpaid on such mortgage debt or obligation."

It will be noted the legislature did not, by the enactment of the 1929 statute, provide a creditor holding both a real estate and chattel mortgage could, if he chose, first foreclose his real estate mortgage, and in the event the property did not sell for enough to fully pay the mortgage debt, then foreclose his chattel mortgage to satisfy the balance. That the legislature did not intend to give the creditor such an option is made clear by the fact it expressly provided both real estate and chattel mortgages "be foreclosed in one action." The only option the 1929 statute gives such a creditor is that he may, in lieu of foreclosing both mortgages in the same action, foreclose his chattel mortgage by notice and sale, and if the mortgaged personalty does not sell for sufficient to fully pay the mortgage debt, then he may foreclose his real estate mortgage to recover the balance. The litigant, of course, cannot fix his own procedure. He must follow that provided by the legislature. That procedure is (following the order in which it is prescribed by the legislature), first: Where a chattel mortgage only is given to secure the payment of a debt, and is foreclosed by notice and sale, and the property does not sell for enough to pay the debt, an action may then be brought to recover the unpaid balance. Secondly: When the payment of a debt is secured by a chattel as well as a real estate mortgage, then and in such case, both "may be foreclosed in one action in the district court having jurisdiction, or in lieu thereof, the chattel mortgage or mortgages may first be foreclosed by notice and sale and if there be any balance unpaid on the mortgage debt or...