Ex parte Logan

• Citation: 185 Ala. 525,64 So. 570
• Parties: Ex parte LOGAN et al.
• Decision Date: 05 February 1914
• Court: Alabama Supreme Court

64 So. 570

185 Ala. 525

Ex parte LOGAN et al.

Supreme Court of Alabama

February 5, 1914

Certiorari to Court of Appeals.

Petition in the Supreme Court by S.E. Logan and another for certiorari to the Court of Appeals to review 63 So. 766. Writ denied.

O.M Alexander and Blackmon, Merrill & Walker, all of Anniston for appellant.

James F. Matthews, of Anniston, for appellee.

MAYFIELD J.

The questions presented for decision are as follows:

Does the mortgagee of a chattel estop himself from maintaining an action of detinue to recover the mortgaged property by levying an attachment or execution upon the property as the property of the mortgagor?

If not estopped, does such levy amount to a waiver of the right or title of the mortgagee?

If the mere levy does not work an estoppel or waiver, is a claim suit, instituted after the levy, between the mortgagee and a third party, which results in favor of the third party, res judicata, in a detinue suit by the mortgagee against the mortgagor, as to the same property?

The trial court and the Court of Appeals answered each of the questions in the negative, and the defendant mortgagor seeks certiorari to have reviewed the judgment and decision of the Court of Appeals as to these questions.

The exact questions are new in this court, so far as our investigation goes. They have been decided by other courts however; but the trouble is they have been decided differently in the several courts. The questions, or some of them, have been answered in the affirmative by the Supreme Courts of Massachusetts and of Arkansas and other states, and in the negative by the Supreme Courts of Illinois, Indiana Kansas, Iowa, North Dakota, and of other states.

The rule of law is thus stated by the Supreme Court of Massachusetts: "A party holding personal property by virtue of a mortgage or pledge may waive his claim under such mortgage or pledge, and attach the property in a suit to recover the debt for which the mortgage or pledge was given. Buck v. Ingersoll, 11 Metc. [ Mass.] 226, 232. Such attachment is, in itself, a waiver of the claim under the mortgage. The liens respectively created by mortgage and by attachment on the same property are essentially different, and cannot coexist. They affect very differently, also, the rights of third persons. A stranger may attach personal property subject to the incumbrance of a prior lien by attachment, with no responsibility for such prior lien; if the lien is by mortgage, he must pay the amount secured by such mortgage, before his attachment is effectual. We have no need to discuss the question whether the same rule shall apply to an attachment of the equity of redemption of personal property to secure the payment of the mortgage debt as applies to the equity of redemption of real property, for, in this commonwealth, the equity of redemption of personal property is not attachable." Evans v. Warren et al., 122 Mass. 304.

The Arkansas court thus states the rule, citing a number of authorities: "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." Cox v. Harris, 64 Ark. 215, 41 S.W. 426, 62 Am.St.Rep. 187, 188.

The Indiana and Illinois courts criticised the rules declared by the Massachusetts and Arkansas courts as being technical and artificial, and declined to follow. See Byram v Stout, 127 Ind. 195, 26 N.E. 687; Barchard v. Kohn, 157 Ill. 579, 41 N.E. 902, 29 L.R.A. 803. In the latter case it is said: "The main case which holds, that an attachment of the mortgaged property by the mortgagee for the mortgage debt is a waiver of his lien under the mortgage is Evans v. Warren, 122 Mass. 303. The decision in that case was placed upon the ground substantially that the liens created by mortgage and by attachment upon the same property are essentially different, and cannot coexist, for the reason that under the Massachusetts statutes the equity of redemption of personal property is not subject to attachment, and hence, if the mortgagee causes an attachment to issue against the mortgaged property, it is a waiver of the mortgage lien. The cases which hold that the attachment operated as a waiver of the plaintiff's rights under the mortgage do so upon the general grounds that a person cannot avail himself of inconsistent remedies in relation to the same matter, and, having chosen and carried into effect one remedy, he cannot resort to a different one, involving a repudiation of the grounds upon which the first one was based; that the suit on the mortgage and the attachment suit were inconsistent, because the one proceeds upon the ground that the mortgagee is the owner of the property, and the other upon the ground that the mortgagor thereof is owner; that, when the debt matured, the mortgagee had the right to take the property under the mortgage, he having the legal title, subject only to a right of redemption; and that, by bringing the attachment suit, he elects to treat the property as the property of the debtor, and cannot, by seeking to enforce his mortgage, assert an ownership and right of...