Cowden v. Mills

• Decision Date: 13 February 1904
• Citation: 75 P. 766,9 Idaho 626
• Parties: COWDEN v. MILLS, SHERIFF
• Court: Idaho Supreme Court

75 P. 766

9 Idaho 626

COWDEN v. MILLS, SHERIFF

Supreme Court of Idaho

February 13, 1904

UNRECORDED MORTGAGE-ACTUAL NOTICE TO PURCHASER-VALUE OF PROPERTY SEIZED.

1. Where a chattel mortgage has not been filed for record with the recorder of the county where such property is located and kept as required by section 3386, Revised Statutes, as amended (Sess. Laws 1899, p. 121), a subsequent purchaser of such property is not bound by the mortgage unless he be shown to have had actual notice of the same.

2. Held, further, that where there is a direct and substantial conflict in the evidence as to whether the purchaser had actual notice of the mortgage, and the trial court finds that he had no such notice, the appellate court will not disturb such findings.

3. In an action to recover the possession of personal property wrongfully seized, or the value thereof, in case a return cannot be had, the plaintiff cannot be limited in his right of recovery to the price for which defendant may have sold the same.

(Syllabus by the court.)

APPEAL from District Court in and for Canyon County. Honorable George H. Stewart, Judge.

Action by plaintiff to recover possession of a band of sheep, or in case a return thereof cannot be had, for the value thereof. From a judgment in favor of plaintiff and an order denying a motion for a new trial defendant appeals. Affirmed.

This is a companion case of Cowden v. Finney, the facts being substantially the same.

Affirmed, with costs.

Hawley Puckett & Hawley and James H. Van Dusen, for Appellant, cite the same authorities cited in the Cowden-Finney case.

W. E Borah and Frank J. Smith, for Respondent, cite the same authorities substantially as in the case of Cowden v. Finney.

AILSHIE J. Sullivan, C. J., and Stockslager, J., concur.

OPINION

AILSHIE, J.

This is an action brought by the respondent against J. C. Mills, Jr. as sheriff of Boise county to recover the sum of $ 26,866.50 alleged to be the value of a certain band of sheep seized by him on the first day of August, 1902. By stipulation of the respective parties the case was transferred from Boise county to Canyon county, and was there tried before the court without a jury. The answer made by the sheriff admitted the taking and pleaded a justification thereof under notice and sale for the foreclosure of a certain chattel mortgage executed on the thirtieth day of November, 1901, by one R. L. Shaw in favor of the Plato Commission Company, a corporation, mortgagee. The mortgage under which the sheriff seized this property is the same instrument referred to in the case of Cowden v. Finney, ante, p. 619, 75 P. 765, decided by this court at the present term. The facts and circumstances connected with making and executing this mortgage are the same as set out in that opinion, and the ownership, situation and location of the property is there sufficiently set forth, and we do not deem it necessary to repeat it here. The same evidence was given in this case as in the Cowden-Finney case with reference to any actual notice which the plaintiff Cowden had as to the execution or existence of the mortgage. At the time the mortgage was made the property was located in Canyon county, but the mortgage was never filed for...