Ilfeld v. Ziegler

• Decision Date: 01 July 1907
• Parties: ILFELD v. ZIEGLER et al.
• Court: Colorado Supreme Court

91 P. 825

40 Colo. 401

ILFELD v. ZIEGLER et al.

Supreme Court of Colorado

July 1, 1907

Appeal from District Court, Larimer County; Christian A. Bennett Judge.

Action by Charles Ilfeld against Watson Ziegler and others. From a judgment for defendants, plaintiff appeals. Reversed and remanded.

Hodges, Wilson & Hodges and Dorsey & Hodges, for appellant.

John T Bottom, for appellees.

CAMPBELL J.

Action for conversion. The complaint in substance alleges that plaintiff, as mortgagee of a flock of sheep and lambs, became thereby the special owner and entitled to the immediate possession thereof. The mortgage was given to plaintiff by Mateo Lujan and wife, in the territory of New Mexico, and was intended as security for their promissory notes to him and for future advances. Being of record, it was constructive notice in that jurisdiction. During the lien of the mortgage the complaint alleges that the defendants wrongfully obtained possession of the sheep and converted them to their own use, for which damages are asked. The answer, after denying the allegations of the complaint contains this separate affirmative defense: 'That if any of the sheep or lambs now or heretofore in the possession of the defendants ever belonged unto Mateo Lujan and Ambrosia V. Lujan, or either of them, and were intended to be included in said chattel mortgage, if any such mortgage ever existed, described in the plaintiff's complaint, the plaintiff, by reason of his acts in permitting the said Mateo Lujan to transfer, sell, and convey the property pretended to be included in said mortgage, and by reason of his failure and neglect to notify the defendants within a reasonable time of his rights, if any, under said chattel mortgage, if any, is barred and prevented from having any claim or demand whatsoever against the defendants, or either of them.' The plaintiff filed a motion to make this defense more definite and certain, specifically pointing out that it failed to allege any fact positively or directly, was hypothetical, in the alternative, and by way of recital. The court overruled the motion, and plaintiff by replication denied the averments of the answer. The jury returned a verdict for the defendants, and from a judgment entered thereon plaintiff appeals, assigning a number of grounds for reversal. Because we must set aside the judgment for reasons presently stated, we shall not comment upon the evidence further than becomes necessary in discussing the legal questions involved.

1. First we discuss an objection here made to the complaint. It was not raised at the trial; defendants on this review for the first time questioning its sufficiency. The particular point which they make is that the facts alleged will not support trover. The argument is that since the mortgage expressly stipulates that the mortgagors may remain in possession of the property until default, and the plaintiff had not taken possession at the time of the alleged conversion, the mortgagors might convey a good title before default, subject to the lien of the mortgage; hence the sale, made, as it was, by the mortgagors before default, conveyed good title subject to the mortgage lien--citing Lafayette County Bank v. Metcalf, 29 Mo.App. 384, and other cases therein considered. The defendants are supposing a case not made by the complaint in the sense contended. The mortgagor, who, under the terms of the mortgage, remains in possession, may, before default or forfeiture, sell and convey title subject to the lien of the mortgage. Jones on Chattel Mortgages (4th Ed.) § 454, and authorities cited. But the Missouri case cited by counsel, whatever may be said of it under its own facts, is not in point here. In that case the sale was made in recognition of the rights of the mortgagee, and the property was transferred subject to the lien of the mortgage. Yet even there the majority of the court were of opinion that no demand was necessary to maintain the action, which was one for conversion. Where, as in the case in hand, the sale is an absolute one of the mortgaged property by the mortgagor in exclusion of the rights of the mortgagee, such sale itself works a default, and is a conversion of the property, for which the mortgagee may maintain trover without demand. Jones on Chattel Mortgages (4th Ed.) § 460. The distinction is made in Lafayette County Bank v. Metcalf, 40 Mo.App. 494, between a sale subject to the mortgage and one in antagonism thereto. In the latter case it was held that an antagonistic sale is a conversion, for, if given effect, it would annihilate the security. The complaint states a cause of action, and, assuming its allegations to be true, plaintiff was entitled to the possession of the property, because of the default of the mortgagor in breaking the covenants of the mortgage. Plaintiff had a special property in the mortgaged property, and was entitled to immediate possession, and this action was maintainable without previous demand. Harrington v. Stromberg-Mullins Co., 29 Mont. 157, 74 P. 413; Sandager v. Northern P. Elevator Co., 2 N.D. 3, 48 N.W. 438; Reynolds v. Fitzpatrick, 23 Mont. 52, 57 P. 452; Horn v. Reitler, 12 Colo. 310, 21 P. 186; Murphy v. Hobbs, 8 Colo. 17, 30, 5 P. 637; Mouat v. Wood, 22 Colo. 404, 45 P. 389.

2. The rule is elemental that in a pleading facts should be stated directly and positively, not hypothetically or by way of recital. Such defects in a pleading, under the rule prevailing in this state, are subject to a general demurrer. Leadville Water Co. v. Leadville, 22 Colo. 297, 45 P. 362. The plaintiff, however, by his motion, which he was not obliged to make, specifically called the attention of the court and defendants to the vice in the affirmative defense of this answer. The court overruled the motion, and the defendants did not see fit to amend their pleading. This defense is fatally defective in the foregoing particulars, as well as in other respects which the parties have not referred to. If other authority than that found in our own decisions were necessary, the following cases furnish it: Suit v. Woodhall, 116 Mass. 547; Jamison v. King, 50 Cal. 132; 6 Enc. Pl. & Pr. 270; Bryant, Code Pleading, 204. In Suit v. Woodhall, the court, by Gray, C.J., in considering objections made to an answer to a declaration on an account for the price of intoxicating liquors, held the answer before the court not sufficient to warrant evidence that the liquor was sold in violation of law, because the pleading contained no clear or precise allegation that the goods sued for were sold illegally, 'but only that, if it shall appear that the goods were sold as alleged in the declaration, it will also appear that they were sold in violation of law. The issue thereby tendered is, not...