First National Bank of Rock Springs v. Ludvigsen

• Citation: 8 Wyo. 230,56 P. 994
• Parties: FIRST NATIONAL BANK OF ROCK SPRINGS, ET AL., v. LUDVIGSEN, ADMINISTRATRIX
• Decision Date: 24 April 1899
• Court: Wyoming Supreme Court

56 P. 994

8 Wyo. 230

FIRST NATIONAL BANK OF ROCK SPRINGS, ET AL., v. LUDVIGSEN, ADMINISTRATRIX

Supreme Court of Wyoming

April 24, 1899

Rehearing Denied July 12, 1899, Reported at: 8 Wyo. 230 at 256.

Commenced in district court March 23, 1897.

ERROR to the District Court, Sweetwater County, HON. DAVID H CRAIG, Judge.

This was a suit in replevin brought by the First National Bank of Rock Springs against Mary Ludvigsen as administratrix of the estate of John Ludvigsen, deceased. The bank claimed under a chattel mortgage. The administratrix claiming the estate to be insolvent and the mortgage void as to creditors for the failure of the mortgagee to file an affidavit of renewal sought to defend her possession upon that ground. The facts are sufficiently set forth in the opinion. Judgment was rendered for defendant, and plaintiff prosecuted error.

Affirmed.

E. E. Enterline and D. A. Reavill, for plaintiffs in error.

1. The judgment must be reversed unless it appears that there was a deficiency of assets in hands of the administratrix at the time of the commencement of the action. (Laws 1890-91, p. 287, Sub-Ch. 16, Secs. 9, 10, 11.) In the absence of a statute, the administratrix can not bring an action to vacate a fraudulent conveyance of decedent. She acquires only the title of decedent. A chattel mortgage given by decedent in his lifetime is binding upon the administratrix, although not renewed. (Jones Chat. Mort., 239; McClure v. Owers, 32 Ark. 443; Martin v. Ogden, 41 id., 186; Denny v. Faulkner, 22 Kan. 75; Recker v. Kilgore, 62 Ind. 10; Stewart v. Platt, 101 U.S. 731; Wolfe v. Perkins (Ark.), 9 S.W. 422; Bennett v. Reef (Colo.), 27 P. 252; Sanders v. Benlow, 21 U. S. Law. Ed., 731.) An agreed statement of facts is considered as the evidence in the case. (People ex rel. v. Dolan, 5 Wyo. 245; 167 Ill. 233.)

2. The judgment must be reversed unless the mortgage of plaintiff in error is a fraudulent conveyance, and given by decedent for the purpose of defrauding his creditors. There was no contention that the mortgage was fraudulent. (Murphy v. Clayton (Cal.), 43 P. 613; Threlkel v. Scott (Cal.), 26 id., 879.) Only such creditors can complain of the mortgagee's failure to file or renew a chattel mortgage as were injured by the neglect. (Jones Ch. Mort., 239, 245; Root v. Harl, 62 Mich. 420; Brown v. Brabb, 67 id., 17; Watson v. Mead, 98 id., 330; Bank v. Oium, 3 N.D. 193; Barton v. Sitlington (Mo.), 30 S.W. 514; Forrester v. Bank (Neb.), 68 N.W. 1059.)

3. The judgment must be reversed unless the creditors represented by the administratrix presented their claims to her, and they were allowed, prior to the commencement of the action. (Ohm v. Superior Court, 85 Cal. 545; Field v. Andrada, 106 id., 107; Murphy v. Clayton, 114 id., 526; Estes v. Wilcox, 67 N.Y. 364; O'Connor v. Boylan, 49 Mich. 209; Fletcher v. Holmes, 40 Me. 364; Graham Button Co. v. Speilman, 50 N.J. Eq. 120; Rutherford v. Alyea (N. J.), 34 A. 1078.)

The gist of replevin is the right to possession at the commencement of the action. (R. S., 1887, Sec. 3032; Cobbey on Replevin, 979, 1049, 1053.) At the commencement of this action there was no deficiency of assets, as there were no creditors at that time (claims not having been presented and allowed), and the property had not been fraudulently conveyed.

John H. Chiles, for defendant in error.

Where a chattel mortgage has not been filed or renewed as required by the chattel act, and the mortgagor dies in possession, leaving an insolvent estate, the delinquent mortgagee can not enforce the mortgage against the personal representative of the deceased mortgagor who has succeeded to the possession of the property. (Wilson v. Leslie, 20 O. , 161; Kilbourn v. Fay, 29 O. St., 264; Forrester v. Bank, 68 N.W. 1059; Laws 1890-91, p. 87, Sec. 5, p. 89, Sec. 11; Becker v. Anderson, 11 Neb. 493; Schouler, Ex'r and Adm'r, 239; 7 Ency. L., 231-33; Laws 1890-91, p. 274, Sec. 1, Ch. 15; id., p. 285, Ch. 16, Sec. 1; Currie v. Knight, 34 N.J. Eq. 485; Kater v. Steinruck, 40 Pa. 501; 50 N.J. Eq. 120; Kelly v. Murphy, 12 P. 467 (Cal.); Hunt v. Butterworth, 21 Tex. 133; Cobbey Ch. Mort. 998; Tiedeman on Sales, 240; Wait on Fraud. Conv., 184; Babcock v. Booth, 2 Hill, 181; Bank v. Salyer (Okla.), 50 P. 76; Murphy v. Clayton, 46 P. 460.)

Replevin does not lie in this case. (Laws 1890-91, p. 285, Ch. 16, Sec. 1; 1 Woerner Adm., 148; State v. R. R. Co., 10 Nev. 47; Gignon v. Astor, 2 How., 319; Day v. Mignon, 18 Wall., 156; Dickey v. Vann, 81 Ala. 425; Cobbey on Replevin, 299-332; Lemp v. Fullerton, 13 L. R. A., 408; O'Keefe v. Foster, 5 Wyo. 343; Bank v. Charles, 86 Cal. 322; Alex. & Joseph Pro. L. & Pr., 242.)

POTTER, CHIEF JUSTICE. CORN, J., and KNIGHT, J., concur.

OPINION

POTTER, CHIEF JUSTICE.

This is a replevin suit in which The First National Bank of Rock Springs claims to be entitled to the possession of certain personal property by virtue of a chattel mortgage executed and delivered to it by one John Ludvigsen in his lifetime to secure the payment of the sum of $ 880 and interest. The bona fides of that indebtedness, and that it was due and unpaid at the commencement of this suit, is conceded.

The mortgage contained a provision permitting the mortgagor to remain in possession of the property, but authorized the mortgagee to take possession in case of default in any of the mortgage conditions. The mortgagor retained possession until his death on November 19, 1896. It then passed into the possession of the defendant in error as administratrix of his estate; letters of administration being issued to her on December 14, 1896. The suit was brought March 23, 1897, and the bank secured possession of the property under the writ and upon the execution of the statutory undertaking. The estate of the decedent mortgagor is conceded to be insolvent, and to have been so insolvent at the time of his death.

The administratrix defends in the right of the creditors, and seeks to hold the property that it may be subjected to the payment of the debts of the estate. She assails the validity of the mortgage as against the creditors of the decedent on account of the failure of the mortgagee to file the statutory affidavit of renewal. It is admitted that no affidavit was filed, and that the statutory time therefor had expired prior to the decease of the mortgagor. When the suit was instituted no claims had been formally presented against the estate except a claim of the administratrix for money advanced for funeral expenses; but afterward and before trial claims aggregating four thousand dollars had been regularly presented and allowed. One thousand dollars of such claims represent indebtedness incurred by the mortgagor prior to the date of the mortgage, and the remainder represents claims incurred subsequent to the execution of the mortgage, but prior to the default in the filing of a renewal affidavit. The mortgage was duly filed as required by statute on the day of its date. The value of the property is conceded to be $ 800.

The action was heard and determined upon an agreed statement of facts. The defendant in error was adjudged to be entitled to the possession, and her damages were assessed at $ 872.41, for which, with costs, judgment was rendered in her favor and against the plaintiff and its sureties. The latter prosecute error.

Although it is conceded that the time arrived and expired for the filing of an affidavit which the statute requires in order to continue the validity of a chattel mortgage as against creditors of the mortgagor, and that the mortgagee defaulted therein, it is nevertheless insisted that the term "creditors" as used in the statute does not comprehend antecedent creditors. This is thought to follow from the intent and policy of the law which counsel esteems to be protection to those who may deal with the mortgagor under the belief that his personal property is unincumbered.

The chattel mortgage act provides that every mortgage of personal property which shall not be accompanied by immediate delivery and be followed by an actual and continued change of possession of the mortgaged property "shall be absolutely void as against the creditors of the mortgagor, and as against subsequent mortgagees or purchasers in good faith," unless said mortgage shall be filed as therein required. Laws 1890-91, Ch. 7, Sec. 5. It is further provided that such mortgage so filed shall remain in full force and validity for the term for which it shall be given, and for sixty days thereafter, and that it "shall cease to be valid as against the creditors of the person making the same, and as against subsequent purchasers or mortgagees in good faith," after the expiration of said sixty days, unless before such expiration notice of foreclosure shall be given, or the mortgagee, his heirs or legal representatives or assigns, or the agent or attorney of the mortgagee or his assigns, shall make an affidavit exhibiting the interest of the owner and holder in such mortgage and the amount yet due and unpaid of the money it may have been given to secure. This affidavit is required to be filed in all respects as the original mortgage. When so made and filed, the mortgage continues in force for one year after the term for which it was originally given; and a like affidavit may be filed within thirty days next preceding the expiration of that year, which will continue the mortgage in force for another year; and within the same limitations and under the same conditions, a like affidavit may be filed to renew the mortgage for each succeeding year thereafter, until the debt secured shall be fully paid. Sec. 11. It is valid between the parties until the debt is fully paid, although neither filed nor renewed. Sec. 10.

It is to be observed...