Dederick v. Wolfe

• Citation: 68 Miss. 500,9 So. 350
• Court: Mississippi Supreme Court
• Decision Date: 20 April 1891
• Parties: P. K. DEDERICK v. F. A. WOLFE ET AL

9 So. 350

68 Miss. 500

P. K. DEDERICK v. F. A. WOLFE ET AL

Supreme Court of Mississippi

April 20, 1891

FROM the circuit court of the first district of Hinds county, HON J. B. CHRISMAN, Judge.

In 1886, appellant, Dederick, sold and delivered to Wolfe and wife a hay press for the sum of $ 450, taking their three notes for $ 150 each, payable at one, two, and three years respectively. Two of the notes were paid. Default being made in the payment of the last note, Dederick, in November, 1890 brought an action of replevin to obtain possession of the press, with a view to selling the same as a means of collecting his debt, of which he notified defendants at the time. Soon after this he brought an action of assumpsit on the note in a justice court. The press having been taken in the action of replevin through an agent, he gave nine days' notice by posting, and sold the press at public outcry, when it was bought in by himself for $ 25. The debtors had personal notice of the time and place of the sale, but they did not attend. They were also notified that plaintiff would look to them for any balance on the note. The amount realized on the sale of the press, less $ 2.50 expenses of sale, was credited on the note then in suit, and plaintiff recovered judgment for the balance due thereon.

From this judgment an appeal was taken to the circuit court, where a trial was had before the court without a jury, resulting in a judgment in favor of the defendants, from which this appeal is taken.

The following is the note upon which the suit is based:--

"$ 150.

JACKSON MISS. Sept. 15th, 1886.

"On or before the first day of January, 1889, for value received we promise to pay to P. K. Dederick, or order, at the 1st Nat. Bank in Jackson, Miss., One hundred and fifty dollars with interest at the rate of 6 per cent per annum until paid, without defalcation or stay of execution. If this note is paid at maturity, a dis. of $ 25 will be allowed.

"In consideration of this contract for the use of a Relo press 14x18 bale, and if suit is brought to enforce collection, of the foregoing note, we agree to have added . . . attorney's fees. The express condition of the transfer for use of the machinery, as above, is that the title, ownership or possession of the same, does not pass from said P. K. Dederick, until this note and all other notes given in execution of this contract, or in renewal of the same or any part thereof, are paid in full, when all of said notes so given and paid are to collectively, and collectively only, constitute a bill of sale and transfer of title, to the machinery in question, to the payee. It is also an express condition of the aforesaid transfer for use that the said P. K. Dederick, shall have full power to declare this note due, and take possession of said machinery at any time he may deem himself insecure, and any amount that may have been paid in execution of this contract, or on the notes given in execution of the same, shall be considered as payment for use of machinery.

"In consideration and in accordance with the above contract, we hereby accept the above-mentioned machinery on the conditions of said contract, and agree that neither loss by fire, breakage or other failure or damage in connection with the same, or any other cause shall constitute a defense or offset or delay prompt payment of this note in full at maturity, and we hereby waive the benefit of all homestead, exemption, or any other law that now exists or may be hereafter enacted, to prevent or delay the collection of the same. For value received I hereby guarantee the payment of this note at maturity.

F. A. WOLFE.

M. F. WOLFE."

Reversed and remanded for a new trial.

Brame & Alexander, for appellant.

The effect of the note in suit was to give defendants a right to the property, the legal title being reserved merely as a security. Duke v. Shackleford, 56 Miss. 552; Burnley v. Tufts, 66 Ib. 48.

Whenever an instrument transferring property is intended as a security for money, it is to be considered a mortgage. 86 Ky. 67; 4 Lea (Tenn.), 439.

Here there was an absolute promise to pay the debt. The security was only an incident to this. In all such cases the creditor may sue on the debt or resort to the security, or do both. Jones on Chat. Mor. § 758.

Without power of sale or stipulation for possession, the mortgagee of a chattel may recover possession. Ib. § 706.

In the absence of statutory requirements, having obtained possession, he may sell. Ib. § 707.

And, in the absence of any provisions as to the manner of sale, many authorities hold that he can sell at private sale. Certainly there is ample authority to make a public sale after reasonable notice. What is reasonable notice to the mortgagor depends on the facts of each case. He who alleges the insufficiency of such notice must assign a reason. Jones on Chat. Mor. § 708.

If the mortgagee takes possession and asserts title without selling, some authorities hold that he thereby satisfies the debt, provided the property is of sufficient value. Ib. § 773; 113 Ind. 98. Otherwise if the property is resorted to in order to enforce the security. 42 Mich. 19. Here the property was taken for the express purpose of being sold to satisfy, as far as possible, the note. No matter what it brought, defendants owed the debt. Straub v. Screven, 19 S.C. 446.

This note represented the last installment. Defendants had used the press over three years, and this itself was sufficient consideration for all the notes.

In Ketchum v. Brennan, 53 Miss. 596, it was held in a case like this that the seller in taking the property rescinded the contract. But this was overruled in Duke v. Shackleford, 56 Miss. 552, where it was said: "In reclaiming his property, therefore, the seller is not rescinding the contract, but is enforcing it." This statement is entirely applicable here.

In all these cases, the court will look through the form to the real transaction. No matter how the contract is worded, if there is a debt and the title is reserved as a security, the rights of the parties will be enforced accordingly. 3 Am. & Eng. Enc. L. 446, and authorities there cited. The purchaser can hold the property on paying the debt, despite the seller; and the seller is entitled to look both to the property and the personal responsibility of his debtor. He does not release the debt by trying to enforce it as against the security.

The authorities cited by opposite counsel do not militate against our position. We are not seeking to enforce inconsistent remedies. Bailey v. Hervey, 135 Mass. 172, is an authority in our favor.

E. E. Baldwin, for appellees.

1. This is simply a case of a conditional sale...