McConnell v. Langdon

• Decision Date: 05 December 1891
• Citation: 28 P. 403,3 Idaho 157
• Parties: McCONNELL ET AL. v. LANGDON, SHERIFF
• Court: Idaho Supreme Court

28 P. 403

3 Idaho 157

McCONNELL ET AL. v. LANGDON, SHERIFF

Supreme Court of Idaho

December 5, 1891

CHATTEL MORTGAGE-CROP MORTGAGE-DESCRIPTION OF PROPERTY IN MORTGAGE-ATTACHING CREDITORS.

CREDITOR'S RIGHT TO ATTACK VALIDITY OF CHATTEL MORTGAGE.-A creditor has the right to attack the validity of a chattel mortgage by attaching the property described therein, giving indemnifying bond to sheriff and selling the property.

CREDITOR AND SHERIFF LIABLE IN DAMAGES IF MORTGAGE PROVE VALID.-The sheriff and creditor do this, however, at the peril of being obliged to pay all damages to the mortgagee if the mortgage is held good.

CROP MORTGAGE-DESCRIPTION IN.-A crop mortgage which describes the grain in the crop or wheat and flax now being, standing, and growing, or all the wheat and flax now growing upon the land known as the timber claim of the mortgagor in Nez Perce county, Idaho, held good.

DESCRIPTION WHEN INSUFFICIENT.-The description, "all wheat and flax to be sown and grown upon the land described," without specifying the year in which it is to be sown and grown, held insufficient.

(Syllabus by the court.)

APPEAL from District Court, Nez Perces County.

Judgment reversed, and new trial granted; costs of appeal awarded to defendant.

Forney & Tillinghast, for Appellant.

The court erred in refusing to allow defendant to amend his return to make it conform to the facts. (Jeffries v Rudloff, 73 Iowa 60, 5 Am. St. Rep. 654, 34 N.W. 756; Thatcher v. Miller, 11 Mass. 413; Spellmyer v Gaff, 112 Ill. 29, 1 N.E. 170; Shenandoah Val. R. Co. v. Ashby, 86 Va. 232, 19 Am. St. Rep. 898, 9 S.E. 1003; People v. Ames, 35 N.Y. 482, 91 Am. Dec. 64.) A demurrer will only lie to the whole pleading, or to the whole of a particular cause of action or defense. It cannot be directed to a portion only of a single cause of action or defense, for the manifest reason that a demurrer raises an issue of law upon which the court is to render judgment. (Knoblaugh v. Hoglesong, 38 Minn. 459, 38 N.W. 366; Locke v. Peters, 65 Cal. 162, 3 P. 657; Tunnel Co. v. McKenzie, 67 Cal. 490, 8 P. 22.) The officer's return did not estop him to prove that the mortgagee in the foreclosure proceedings had no property interest in the property which he held under attachment. (Rogers v. Cromack, 123 Mass. 582; Denny v. Willard, 11 Pick. 519, 22 Am. Dec. 389; Roberts v. Wentworth, 5 Cush. 192; State v. Harper, 94 N.C. 23; Barker v. Binninger, 14 N.Y. 279; Bigelow on Estoppel, 5th ed., 642, 643.)

Sweet & Elder and Freund & Loughary, for Respondents.

It was too late for appellant to amend his return. (Bigelow on Estoppel, 3d ed., 549-551, 553, note 3; Barnard v. Stevens, 2 Aik. 429, 16 Am. Dec. 733; Freeman on Judgments, 1st ed., sec. 366; Simmons v. Bradford, 15 Mass. 82; Meister v. Birney, 24 Mich. 435.)

MORGAN, J. Sullivan, C. J., and Huston, J., concur.

OPINION

MORGAN, J.

The complaint alleges that the plaintiffs, on the second day of November, 1887, executed and delivered to the defendant, as sheriff, affidavit and notice required by law, and demanded that the said sheriff proceed to sell the personal property in the said affidavit and notice described by virtue of a chattel or crop mortgage owned by plaintiffs, which is attached to the complaint, and marked exhibit "A." The mortgage was dated April 20, 1887; was given by A. Matheason, a farmer, to the plaintiffs herein, to secure the payment of the sum of $ 553, then owing by said mortgagor to the plaintiffs; and covered the following crop, viz.: "The crop of wheat and flax now being, standing and growing, or that is to be sown and grown, upon that certain piece of land situated, . . . . and more particularly described as follows, viz.: All the wheat and flax now growing or that is to be sown and grown on the south half of the southwest quarter and the west half of the southeast quarter of section 22, in township 38 north, of range 5 west, Boise meridian, known as the 'timber claim' of the said party of the first part, the mortgagor." Said mortgage was duly acknowledged and recorded April 20, A. D. 1887. The complaint further alleges that said defendant, as sheriff, refused to sell the said property by reason of a levy of a writ of attachment thereon by himself, as sheriff, prior to the levy under and by virtue of said notice, affidavit, and chattel mortgage (a copy of said affidavit, notice, and return is annexed to the complaint) alleges damage, and prays judgment in the sum of $ 552.12, and interest thereon. The defendant filed his amended answer, admits partnership of plaintiffs, and that the defendant was the duly elected, qualified, and acting sheriff as alleged. Second paragraph admits that on November 2, 1887, the plaintiffs, by their attorneys, delivered to the defendant the affidavit and notice attached to the complaint and marked exhibit "F," but denies that the same was an affidavit required by law. And third paragraph denies that he (defendant) ever refused to sell the property as by said notice he was required to do, or any part thereof. Denies that as such sheriff, under said mortgage, or under said affidavit, or under said notice, or under any authority whatever, he was authorized or required to sell any property whatever. Denies that the said mortgage was a lien upon or authorized the sale of the property therein described, or any part thereof. Denies that under and by virtue of said chattel mortgage, or under or by virtue of said affidavit or notice, defendant ever levied upon or took into his possession any property described in the said chattel mortgage, or said affidavit, or said notice. Admits that he made the return upon the affidavit for foreclosure of the mortgage, which is as follows:

"Territory of Idaho, County of Nez Perces. SS.

"I hereby certify that I received the within affidavit on the second day of November, 1887, and proceeded to levy, and did levy, upon the within described property on the second day of November, 1887, but by reason of a writ of attachment placed in my hands on the first day of November, 1887, and having levied, by virtue of said writ, upon the property described in the within affidavit, with instructions from the plaintiffs named in said writ to hold said property regardless of said mortgage, I therefore refuse to proceed with said foreclosure.

"Dated this tenth day of November, 1887.

"S. J. LANGDON, "Sheriff.

"By GEORGE LANGDON, "Deputy."

And in the same paragraph alleges that at the time of making said return he had and held under and by virtue of the writ of attachment, duly issued out of the probate court of the county of Nez Perces, Idaho, in an action then pending, wherein Frank Brothers Implement Company was plaintiff, and the said Andreas Matheason and Anna Matheason, his wife, were defendants. That at the time of making said return on said affidavit this defendant, by mistake, supposed that the said grain described in the said affidavit was the same grain which he had in his possession under said attachment. Whereas said defendant alleges, upon information and belief, that the said property he thus had in his possession under said writ was not, nor any part thereof, any of the property described in the mortgage, affidavit, or notice. The fourth paragraph denies damage, etc. The trial was had before the court, a jury being waived, and the court found for the plaintiffs, and gave judgment against the defendant in the sum of $ 928 and costs. Defendant moved for new trial, which being denied, he appeals to this court.

We shall take such of the alleged errors, in the order in which they are stated by the defendant, as are deemed necessary to a determination of the material issues in the case. The first error assigned by defendant is: "The court erred in overruling the motion of the defendant, S. J. Langdon, to amend his return upon the affidavit of J. C. Elder, attached to the amended complaint herein, marked exhibit 'B.'" It is always in the discretion of the court to permit amendments to the return of the officer in order to make it conform to the actual facts. It will be noticed that in the affidavit of the deputy sheriff in support of defendant's motion for leave to amend his return the affiant states that he did not levy upon any wheat or flax grown or growing upon...