Byrd v. Forbes

• Decision Date: 02 February 1887
• Citation: 13 P. 715,3 Wash.Terr. 318
• Parties: BYRD v. FORBES.
• Court: Washington Supreme Court

13 P. 715

3 Wash.Terr. 318

BYRD v. FORBES.

Supreme Court of Territory of Washington

February 2, 1887

Elwood Evans, for plaintiff in error.

Judson, Taylor & Campbell, for defendant in error.

GREENE, C.J.

It is not disputed but that, under the statutes of this territory the interest of a mortgagor in mortgaged personal property is subject to attachment. Liability of his interest to be attached exists even in states where the mortgage operates to pass to the mortgagee the title to the goods. Hull v. Carnley, 11 N.Y. 501. A fortiori, such liability obtains under our statutes which clearly will not consist with any other doctrine than that a chattel mortgage is a mere security under which no title can possibly pass except by foreclosure and sale. Such a mortgage is defined, as to its nature and effect, by the provisions of chapter 141, §§ 1986-1999 of the Code, being therein spoken of and treated as giving a lien only, and serving for a security, and as needing foreclosure to divest the title of the mortgagor. Sections 618 and 619 of the Code speak of such mortgages as instruments "creating liens," provide for their foreclosure, class them with mortgages of real property, and assimilate the foreclosure of them to that of mortgages on real property, which have been determined by this court to be, under our statutes, mere securities. Parker v. Dacres, 2 Wash. T. 439, 7 P. 893.

As a general rule, any interest that may be sold on execution is subject also to process of attachment, and it is expressly provided in section 1990 that a mortgagor's interest in goods may be taken in execution. Under our law of attachment there exists no other way of making the attachment levy upon chattels capable of manual delivery than to take them into custody. Code, § 179. Section 1990 contemplates such a taking, when it provides that the officer who executes the process shall mail to the mortgagee, "or to his agent if their post-office is known, a notification of the intended sale, at the time such mortgaged property is seized under said process, or within five days thereafter," and that "said property shall not be sold within thirty days after its seizure, and that he shall post notices at the time of the seizure under said process." The provisions of section 1990 are inconsistent with the idea that, after levy by the sheriff, the mortgagee can demand and take possession. So, too, are all those provisions of statute which compel us to regard a chattel mortgage as a mere security. The theory upon which, at common law, and in some states of this Union, the mortgagee can take possession, and even dispossess the sheriff, is that the mortgagee is owner, and the sheriff a trespasser. Hall v. Sampson, 35 N.Y. 274. An express stipulation in a chattel mortgage that the mortgagee may take possession upon a certain contingency may be good as between the parties to the instrument, so as to allow the mortgagee to take possession from the mortgagor; but it cannot, in face of our statutes, be held to authorize a taking or retaining the possession as against creditors of the mortgagor seeking to attack his interest, or subject it to execution. Under our statutes an unforeclosed mortgage is a mortgage still, regardless of where the possession lies.

We are clear that the provisions of section 1990, regarding notification of the mortgagee, are mandatory, but do not affect the validity of the sale. This is evident from the consideration that the service of notice is contingent upon the knowledge of the officer as to the residence and post-office of the mortgagee or his agent. A sheriff, like any other man, is liable to be misinformed or mistaken, and if the validity of his doings were to depend upon his knowledge of such facts, the title of the purchaser of the mortgagor's interest would often be illusory. But, as these provisions are plainly intended for the benefit of the mortgagee, he has his action against an officer possessed of the requisite information who fails to comply with the law, and whose failure proximately results in damage to the mortgagee. In the case before us the complainant does not state facts sufficient to show that the sheriff is liable for non-compliance with section 1990; for it does not...