First Nat. Bank of St. Anthony v. Steers

• Decision Date: 23 January 1904
• Citation: 9 Idaho 519,75 P. 225
• Parties: FIRST NATIONAL BANK OF ST. ANTHONY v. STEERS
• Court: Idaho Supreme Court

75 P. 225

9 Idaho 519

FIRST NATIONAL BANK OF ST. ANTHONY v. STEERS

Supreme Court of Idaho

January 23, 1904

CHATTEL MORTGAGE-POSSESSION OF MORTGAGED PROPERTY-CLAIM AND DELIVERY.-Where a chattel mortgage contains a stipulation providing that upon the happening of certain contingencies therein named "the mortgagee may take possession of said property, using all necessary force to do so, and may immediately proceed to sell the same in the manner provided by law," it is held that upon the happening of such contingency the mortgagee may maintain the action of claim and delivery, to recover possession of the mortgaged property from an officer who claims to hold the same under writ of attachment issued and levied subsequent to the mortgage lien and who refuses to deliver up the property upon demand of the mortgagee or to pay the mortgage debt.

(Syllabus by the court.)

APPEAL from District Court in and for Bingham County. Honorable J M. Stevens, Judge.

Action in claim and delivery. Demurrer to the complaint was sustained and judgment entered for the defendant and plaintiff appealed. Reversed.

Reversed and remanded, with directions. Costs awarded to appellant.

Caleb Jones, Rice & Thompson and W. E. Borah, for Appellant.

Is the plaintiff, under the terms of the mortgage and the allegations of the complaint, entitled to the possession of this property as against the defendant? In other words, will an action for replevin in this state lie in favor of the mortgagee to get possession of the property which has been unlawfully and wrongfully taken possession of by a sheriff under pretended attachment and at a time when the terms of the mortgage have been broken? It will be noticed that this mortgage expressly provided that upon certain things transpiring, to wit, the failure of payment of levy of attachment upon the property, that the mortgagee shall be entitled to possession. We maintain that this right of possession is such that it will give rise to an action for replevin. (Flinn v. Ferry, 127 Cal. 648, 60 P. 434; Machette v. Wanless, 1 Colo. 225; Payne v McCormick Co., 11 Okla. 318, 66 P. 287; Mayes v. Stephens, 38 Or. 512, 63 P. 760, 64 P. 319; Rankine v. Greer, 38 Kan. 343, 5 Am. St. Rep. 751, 16 P. 680; Bank of Woodland v. Duncan, 117 Cal. 412, 49 P. 414; Singer Machine Co. v. Rios, 96 Tex. 174, 97 Am. St. Rep. 901, 71 S.W. 275, 60 L. R. A. 143.) In the case below the syllabus reads as follows: "Replevin will lie in favor of the mortgagee against the sheriff for personal property covered by chattel mortgage seized under an attachment while the mortgagor was in possession." (Wood v. Weimar, 104 U.S. 779, 26 L.Ed. 924; Jones on Chattel Mortgages, secs. 442, 706; Cobbey on Replevin, secs. 189, 191, 194; Mervine v. White, 50 Ala. 388; Brookover v. Esterly, 12 Kan. 149; Frisby v. Longworth, 11 Wis. 375; Lorton v. Fowler, 18 Neb. 224, 24 N.W. 685; Schlessinger v. Cook, 9 Wyo. 256, 62 P. 152; Mark v. McGehee, 35 Ark. 217; O'Neill v. Whitcomb, 3 Idaho 624, 32 P. 1133; Stringer v. Davis, 35 Cal. 25; Jones v. Annis, 47 Kan. 478, 28 P. 156; Coughran v. Sundback, 9 S. Dak. 483, 70 N.W. 644; Berson v. Nunan, 63 Cal. 551; Pyeatt v. Powell, 51 F. 551, 2 C. C. A. 367; Rosenfield v. Case, 87 Mich. 295, 49 N.W. 630; Stevenson v. Lord, 15 Colo. 131, 25 P. 313; Gage v. Wayland, 67 Wis. 566, 31 N.W. 108.) Our statute expressly provides that before the attaching officer is entitled to take possession of the property he must tender to the mortgagee the amount due on said mortgage. (Idaho Rev. Stats., sec. 3389; Baumgartner v. Vollmer, 5 Idaho 340, 49 P. 729.)

Wallis & French and F. S. Dietrich, for Respondent.

The simple and sole question is: Is a mortgagee entitled to have possession of his security according to the terms of the contract? (Karsteiner v. Clyne, 5 Idaho 59, 46 P. 1019.) It is a general rule that the plaintiff in a replevin suit must recover not upon the weakness of his adversary's title, but upon the strength of his own title. (24 Am. & Eng. Ency. of Law, 2d ed., 483.) A creditor has the right to attack the validity of a chattel mortgage by attaching the property described therein. (McConnell v. Langdon, 3 Idaho 157, 28 P. 403.) We contend that the exact question involved in this appeal has been twice adjudicated by this court within the last two years. (Rein v. Callaway, 7 Idaho 634, 65 P. 63; Marchand v. Ronaghan, ante, p. 35, 72 P. 731.)

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

OPINION

The facts are stated in the opinion.

AILSHIE, J.

This action was commenced by the plaintiff in claim and delivery to recover the possession of a band of three thousand one hundred head of sheep and seven hundred and fifty head of lambs. Plaintiff filed its complaint alleging that on or about the seventeenth day of October, 1902, one J. M. Jolly was the owner and in possession of a certain band of sheep, and was then indebted to the plaintiff in the sum of $ 5,000; that upon said date Jolly made, executed and delivered to plaintiff his two certain promissory notes for the sum of $ 5,000, and secured the same by chattel mortgage upon the above-mentioned personal property. It is further alleged that on the thirteenth day of June, 1903, and while the notes and mortgage were yet unpaid, the defendant, sheriff of Bingham county, levied an attachment upon the property covered by the chattel mortgage, and that at the time of the commencement of plaintiff's action herein the defendant was still wrongfully and unlawfully withholding possession of the mortgaged property against the will and without the consent of the plaintiff. The mortgage was attached to the complaint and made a part thereof, and contains the following provision:

"It is also agreed that if the mortgagor shall fail to make any payment as in said promissory note provided, or if the said mortgagor shall attempt to sell the property herein described, or any part thereof, without the written permission of the mortgagee or if the said property shall be levied upon by attachment or execution, or if the mortgagor shall attempt to remove the property from the county in which it is situated without the written consent of the mortgagee, the said debt shall at once become due and the mortgagee may take possession of said property, using all necessary force to do so, and may immediately proceed to sell the same in the manner provided by law."

To this complaint the defendant filed a general demurrer, which was sustained by the trial court and the plaintiff refused to amend. Thereupon a judgment was entered dismissing the action and for costs in favor of the defendant. From such judgment the plaintiff has appealed. The only question presented here and upon which we are asked to pass is: Can a mortgagee maintain the action of replevin, or claim and delivery, as it is designated by our statute, for the recovery of possession of personal property covered by his mortgage? It will be seen that in this case the mortgagor contracted with the mortgagee that upon the happening of certain contingencies named therein the mortgagee might take possession of the property. It is contended by the respondent here that a provision of this kind in a mortgage cannot be lawfully made under the laws of this state. This contention is based upon the fact that a mortgage of personal property within this state does not pass any title to the mortgagee, and does not entitle him to the possession of the property, and that therefore the mortgagee obtains no such right of property or right of possession under the chattel mortgage as will authorize him, under any possible contingency, to maintain the action of claim and delivery. Sections 3386 and 3387, Revised Statutes, were amended in 1899 (Sess. Laws 1899, p. 121), and it is provided by these sections that all mortgages of personal property, in order to be valid as against subsequent purchasers and encumbrancers, shall, among other things, be acknowledged and filed for record with the recorder of the county where the property is located. It is not contemplated by the laws of this state that the possession or right of possession or personal property mortgaged shall be transferred from the mortgagor to the mortgagee and such is not necessary to the validity of the mortgage; but section 3387, supra, as amended, closes with the following sentence: "Provided, further, that if the mortgagee receive and retain actual possession of the property mortgaged, he may omit the filing of his mortgage during the continuance of such actual possession."

The statute therefore recognizes the right of the mortgagor to contract with the mortgagee, whereby the latter may have the actual possession of the property...