Cox v. Harris

• Decision Date: 19 June 1897
• Citation: 41 S.W. 426,64 Ark. 213
• Parties: COX v. HARRIS
• Court: Arkansas Supreme Court

41 S.W. 426

64 Ark. 213

COX v. HARRIS

Supreme Court of Arkansas

June 19, 1897

Appeal from Boone Circuit Court, BRICE B. HUDGINS, Judge.

STATEMENT BY THE COURT.

The appellee, Harris, was the owner of two mules, one of which he mortgaged to appellants, Cox & Denton, to secure payment of a promissory note he had executed to them. Cox & Denton, being indebted to Hill, Fontaine & Co., transferred the note and mortgage to them as collateral security. Afterwards, J. P Clendenin was employed by Hill, Fontaine & Co. to collect the note. He brought suit on the note against Harris in the name of Cox & Denton for the use of Hill, Fontaine & Co., and had an attachment issued and levied upon the mule included in the mortgage. Harris employed S.W. Woods, an attorney, to defend the attachment suit, and, to secure payment of his fee, gave him a mortgage upon the mule that had been attached, which had also been mortgaged to Cox & Denton. Appellants recovered judgment upon the note against Harris, and the attachment was sustained. Harris filed a schedule of his property, claiming the mule as exempt from execution. This claim of exemption was sustained, a supersedeas was issued against the order of sale, and the mule delivered to Harris. The appellants then brought this action of replevin, claiming the right to take possession of the mule under the mortgage executed to them by Harris. S.W. Woods claimed an interest in the mule under the mortgage from Harris to him, and was made a party defendant with Harris. Upon the trial the court gave the following among other instructions to the jury: "If you believe from a preponderance of the evidence that the plaintiffs sued out a writ of attachment against the defendant, Harris, and levied the same on said mule, in an effort to make their debt, which was secured by a mortgage on said mule, this would waive the lien held by plaintiffs on said mule by virtue of said mortgage."

The verdict and judgment were in favor of the defendants.

Judgment affirmed.

Rose Hemingway & Rose, for appellants.

There was no waiver of the mortgage lien by levying the attachment. 31 Ark. 109; 54 id. 457. A mere levy, relinquished before sale, could certainly have no such effect. The universal rule of law and equity is that notice of an unrecorded mortgage binds any subsequent lienor or purchaser. Jones, Chattel Mortgages, § 308. As to mortgages filed for record, a different rule prevails in this state; but that is only by statute. Sand. & H. Dig., §§ 5091, 5102, 5109; 61 Ark. 128. But this rule does not extend to this class of instruments. 54 Ark. 273 does not support the ruling below.

Carmichael & Seawell, J. C. Floyd and S.W. Woods, for appellees.

The mortgagee is the legal owner of the mortgaged personal property, and it is not subject to levy on attachment or execution for a debt of the mortgagor. Jones, Chat. Mortg. (2 Ed.) § 555; Pingrey, Chat. Mortg. §§ 31, 814 795; Boone, Mort. § 266; 42 Ark. 236. By attaching they waived their mortgage lien, as they had a right to do. Drake, Att. (5 Ed.) §§ 35, 245; Pingrey, Ch. Mortg. § 808; 11 Met. 226; 51 Me. 418; 29 id. 429; Jones, Ch. Mortg. (2 Ed.) § 565; Cobbey, Ch. Mortg. § 746; 122 Mass. 303. Actual notice of an unrecorded mortgage is not sufficient; the mortgage must be recorded to be of any validity against strangers. 20 Ark. 190; 18 id. 105; 49 id. 457; 22 id. 136. The same rule applies to mortgages filed but not recorded. Sand. & H. Dig., §§ 5102, 5109; 52 Ark. 164; 39 id. 442. When the mortgage is withdrawn, it is no longer notice. Cobbey, Ch. Mortg. § 567; 25 Minn. 81; 24 Neb. 559; 10 Mich. 500; 40 Wis. 523.

RIDDICK, J. Absent WOOD, J.

OPINION

RIDDICK, J., (after stating the facts.)

The question to be determined in this case is whether the appellants waived their mortgage lien by suing out an attachment against the mortgagor, and causing it to be levied upon the mortgaged property? It is a familiar principle of law that one is not, as a rule, allowed to avail himself of the advantages of inconsistent positions in a litigation concerning the same subject-matter. Dyckman v. Sevatson, 39 Minn. 132, 39 N.W. 73.

The appellants in this case held the note of Harris, which was secured by a mortgage upon the mule in controversy. The note was past due, and appellants could have taken charge of the property, and sold it, under the power contained in the mortgage, but they elected, instead, to bring suit before a justice of the peace, and attach the property. Now, so long as the mortgage lien existed, the mortgagor, Harris, had no interest in the mule subject to attachment, for mortgaged personal property is not subject to execution or attachment for a debt to the mortgagor. Jennings v McIlroy, 42 Ark. 236. But appellants had the right to waive their mortgage lien, and attach the property. The levy of the attachment amounted to an assertion by appellants that the property was subject to seizure and sale under the attachment. But, as this could not be true if the lien of the mortgage still existed, the levy of the attachment was the same as a denial on the part of appellants that the mortgage lien existed, and was in effect a waiver on their part of the lien created by the mortgage. In other words, having sued out an attachment, levied it upon the property in question, and prosecuted the attachment suit to judgment, they must be held to have waived rights which were inconsistent with such a course of procedure. The mortgage lien, being inconsistent with such attachment, was thereby waived, and appellants have nothing upon which to base their action of replevin. Evans v. Warren, 122 Mass. 303; Cochrane v. Rich, 142 Mass. 15, 6 N.E. 781; Whitney v. Farrar, 51 Me. 418; Haynes v. Sanborn, 45 N.H. 429; Dyckman...