Kindall v. Lincoln Hardware & Implement Co.

• Decision Date: 08 December 1902
• Citation: 8 Idaho 664,70 P. 1056
• Parties: KINDALL v. LINCOLN HARDWARE AND IMPLEMENT COMPANY
• Court: Idaho Supreme Court

70 P. 1056

8 Idaho 664

KINDALL v. LINCOLN HARDWARE AND IMPLEMENT COMPANY

Supreme Court of Idaho

December 8, 1902

EXEMPT PROPERTY-CHATTEL MORTGAGE.-Under the laws of Idaho, a chattel mortgage executed by the husband alone upon chattels which are exempt from execution creates no lien thereon, where the wife does not join in the execution of such chattel mortgage as required by the act of February 16, 1899.

CHATTEL MORTGAGE - FORECLOSURE BY SHERIFF'S NOTICE AND SALE-INJUNCTION.-An injunction will lie to restrain a mortgagee and sheriff from foreclosing a chattel crop mortgage executed by the husband alone upon property belonging to the husband and exempt from execution.

(Syllabus by the court.)

APPEAL from District Court, Idaho County.

Reversed and remanded.

McDonald & De Haven, for Appellant.

This action was brought under section 3396 of the Revised Statutes to contest the foreclosure of a crop mortgage, and its determination involves a construction of said section as to the proper procedure in cases where the mortgagee's right to foreclose is challenged. We maintain that the death of the wife, especially after action brought and an injunction bond given, as in this case, did not have any such miraculous effect as to make a mortgage valid that was void in her lifetime. Mortgages are not made valid by the death of parties who should have joined in their execution. We maintain further that under said statute either of the spouses could take advantage of the failure of the other to join in the execution of the mortgage. Conceding for the sake of argument that the foreclosure affidavit is sufficient under section 3391, then the mortgagee's right to foreclose could only be assailed in a proceeding under this section. (Blumauer-Frank Drug Co. v. Branstetter, 4 Idaho 557, 95 Am. St. Rep. 151, 43 P. 575.) Now we take the position that no mortgagee should be permitted to foreclose by notice and sale, a mortgage that he cannot foreclose in a court of equity, and that once in a court of equity he must there affirmatively assert his right to foreclose or forever waive it. The section above quoted "evidently contemplates an action in the district court." (Murphy v. Russell, ante, p. 133, 67 P. 421; Ency of Pl. & Pr., 520, citing Hanlon v. Parson, 33 Iowa 207; Stevens v. Home Sav. etc. Assn., 5 Idaho 741, 51 P. 779, 986; Lynch v. Metropolitan Elevated R. Co., 129 N.Y. 274, 26 Am. St. Rep. 523, 29 N.E. 315, 15 L. R. A. 287.)

L. Vineyard and G. G. Pickett, for Respondents.

Without going into detail in answering all the statements made in appellant's brief, we believe we can dispose of them by referring to them generally. Many pages of plaintiff's brief are taken up in discussing errors assigned on the findings of law and fact. Did the court err in finding from the pleadings and proofs that the mortgage sought to be foreclosed by affidavit was a legal and valid mortgage, and that the respondent hardware company had a right to foreclose it by affidavit and notice by the sheriff under the statute? We do not agree that in so finding the court erred. On this let us look at the issues tendered by the complaint. It is alleged in the complaint that the mortgage sought to be foreclosed was executed as alleged in the affidavit, and not claimed that the amount claimed by the respondent was not then due and owing thereon. This being so, the respondent company was not called upon to go into any evidence in addition to what was offered on this subject by copies of the mortgage and affidavit, etc., and on this the court was justified in finding as conclusion of law that the mortgage was valid and legal, and that the sheriff was proceeding rightfully and legally at the time Kendall brought the suit, and that Kendall was not entitled to the relief prayed for, and therefore his suit should be dismissed. The judgment being based upon this conclusion, the question is, Was this right? We think it was. This suit for perpetual injunction was brought on the sole ground that the mortgage was invalid, and that the process in the hands of the sheriff was void, not being, as claimed, in legal form. If the findings and conclusions on this matter are correct, all other findings which might have been obviated will not be reviewed. (Gordon v. Clark, 22 Cal. 533; Stewart v. Smith, 14 Abb. Pr. 75; Fowler v. Clemwriter, 35 Barb. 143.) So errors committed by the court below in favor of an appellant cannot be reviewed here. (Weiser v. Dennison, 10 N.Y. 68, 61 Am. Dec. 731.) If the judgment is just in the main, mere technical irregularities of form will be disregarded. (Webster v. King, 33 Cal. 348.) Alleged errors in findings of fact will not be considered when the findings themselves are immaterial to the decision. (Knockenbaum v. Pierson, 22 Cal. 160.)

QUARLES, C. J. Sullivan and Stockslager, JJ., concur.

OPINION

QUARLES, C. J.

On the fourteenth day of September, 1899, the respondent, the Lincoln Hardware and Implement Company, a corporation, sold to the appellant, Kindall, and the respondents C. S. Stone and E. E. Squires, one 32-Columbia thresher and 8-horse triple gear power, with divers fixtures thereunto belonging conditionally, and entered into a contract of sale, under the terms of which said thresher, etc., was to remain the property of said corporation, who was to retain the title thereto until the said purchase price, with interest thereon, was fully paid. On the said date the appellant, Kindall, and the respondent Stone and Squires executed to said corporation, to secure the said purchase price, a mortgage upon the said thresher, horse power, and fixtures, and six hundred bushels of barley then stored in the granary of appellant, J. E. Kindall, and to further secure said purchase price the appellant, Kindall, and respondents Stone and Squires jointly executed on the said day another chattel mortgage, further mortgaging to said corporation the crops then growing and to be thereafter grown, and described as follows, to wit: "The crop of flax now being and growing on the north half of the northeast quarter...