Perham v. Putnam

• Decision Date: 09 May 1928
• Docket Number: 6281.
• Citation: Perham v. Putnam, 82 Mont. 349, 267 P. 305 (Mont. 1928)
• Parties: PERHAM v. PUTNAM et al.
• Court: Montana Supreme Court

267 P. 305

82 Mont. 349

PERHAM v. PUTNAM et al.

No. 6281.

Supreme Court of Montana

May 9, 1928

Appeal from District Court, Silver Bow County; Wm. E. Carroll Judge.

Action by A. Perham, doing business as the Montana Cadillac Company against O. M. Putnam and another.Judgment for plaintiff, and defendants appeal.Affirmed.

R. L Clinton, of Shelby, and N. A. Rotering, of Butte, for appellants.

P. E. Geagan, of Butte, and Louis P. Donovan, of Shelby, for respondent.

MYERS J.

This is a replevin action, instituted to recover possession of an automobile, seized and sold for taxes, or the value thereof, if possession might not be had.

Plaintiff was engaged in the business of selling automobiles.On a conditional sale contract, he sold an automobile to one George George, a resident of Butte, Silver Bow county.George took possession of the car, and took it to the oil fields in Toole county, and there used it throughout the summer and fall of 1924.In January, 1925, George had the car put in storage in the Eckel Motor Garage, conducted by the Eckel Motor Company, in Shelby, county seat of Toole county, where it remained continuously until the 10th day of September, that year, and until sold for taxes, at that time.Thus the car was there at noon, the first Monday of March, 1925, and at that time was claimed by and under the control of George, and, constructively, was in his possession.

In June, 1925, the assessor of Toole county, learning the car was there, and had been there on the first Monday of March, that year, and that it was claimed by George, assessed it, for the year 1925, to George.Not being able to find George, the assessor made the statement of the assessment, the assessment list, and estimated the value of the car at $1,500, and notified the county treasurer thereof.That official spread the assessment on the assessment roll for 1925.July 6, 1925, the treasurer made notice, addressed to George George, of the assessment and the amount of the tax, $28.50, due thereon, and mailed it to George George, care of Eckel Motor Company, Shelby, Montana, and mailed a duplicate thereof to George George, Butte, Montana.The tax was not paid, nor was any part of it.

The treasurer, by written appointment, appointed the sheriff of Toole county a deputy county treasurer, as provided in chapter 102, Session Laws of Eighteenth Assembly 1923, for the purpose of seizing the car and selling it for the tax due thereon.The sheriff, as a deputy county treasurer, seized the car, took possession of it, and put on it a notice of seizure.He seized it September 4, 1925.That day were prepared notices that he would sell the car, at sheriff's sale, at the Eckel Motor Garage, in the city of Shelby, in Toole county, at 2 o'clock p. m. September 10, 1925.September 4, four of the notices were posted in four public places in Shelby by a deputy sheriff.Thus six days' notice was given.

The day of sale, as noticed, the sheriff sold the car, at public auction for cash, to Putnam, a defendant herein, he being the highest bidder, for the sum of $100, the highest sum bid, and Putnam took possession of the car and took it away.Later, Putnam undertook and purported to sell a half interest in the car to Taylor, the other defendant herein.The sheriff, as a deputy county treasurer, executed and gave to Putnam a certificate of sale of the car, and he made due return of the sale, and delivered the proceeds thereof, less his costs, to the treasurer.

Later, demand was made by plaintiff, through an attorney, upon defendants for possession of the car.The demand was not complied with, and plaintiff brought this action for recovery of the car or its value, if return of the car could not be made.At the beginning of the action, by direction of plaintiff, and upon the required showing, the sheriff seized the car and delivered it to plaintiff.

The complaint is the ordinary complaint in claim and delivery.The closing paragraph of the complaint is that the "automobile was not taken for any tax, assessment, or fine pursuant to statute or seized under an execution or attachment against the property of the plaintiff, and that the said automobile was and is of the actual value of $800; the same is now wrongfully and unlawfully retained by defendants."

The answer, upon information and belief or positively, denies all of the allegations of the complaint, and, for a separate and affirmative defense, sets up the seizure and sale, by an authorized official, of the car and the purchase thereof, at official sale, by defendant Putnam, and alleges the use of the car, of which defendants are deprived, is worth $100 per month.

A reply, denying the essential allegations of the affirmative defense, was filed.

The case was tried to the court, without a jury.The foregoing narrated facts were established by the evidence.It was shown, also, that George had made the most of the monthly payments called for by his conditional sale contract, but was in default as to two of them, when the car was seized by the sheriff.The contract was put in evidence.It provides that title shall remain in the seller until full payment of purchase price.It provides that George should keep the car "free of all taxes."It has the usual defeasance clause, providing that, if George default in any of the terms of the contract, the whole of the purchase price, at the election of the seller, shall be immediately due and payable, and, after default, George's possession of the car shall be unlawful, and the seller may take immediate possession, and, for that purpose, may enter upon the premises where the car may be, and take and remove it.It was shown, further, that plaintiff knew nothing of the whereabouts of the car, nor of the assessment of it, nor of the tax due thereon, nor of the seizure or sale of the car until after the sale, when he learned of the seizure and sale and of defendants' possession and made his demand for the car.

The court made findings of fact, favorable to plaintiff, and, in accordance therewith, rendered judgment for plaintiff.Defendants appealed, and assign several specifications of error.In our discussion of the case, we shall refer to them and counsel's contentions based thereon as may be appropriate.

Being a replevin action, it devolved upon plaintiff to show that he was entitled to the immediate possession of the car at the time of the commencement of his action.That is the test.Was he entitled thereto at that time?Cameron v. Wentworth,23 Mont. 70, 57 P. 648;34 Cyc. 1387, and long list of cases cited.

Based upon an assignment of error, counsel for defendants contend that George was entitled to possession of the car "until proper forfeiture."In their brief they say: "No forfeiture is pleaded and no forfeiture is claimed in the testimony."

As George is not a party to this action, it was not necessary to plead his conditional sale contract and forfeiture.To have done so would have been pleading evidence.As to the evidence, plaintiff, when testifying, certainly did testify to facts which constitute a forfeiture.George, not being a party herein, is not complaining about anything; he is not claiming possession.He knew of the action.He testified at the trial, as a witness for defendants, but made no claim of right of possession for himself.If counsel mean that plaintiff should have informed George he was in default, the answer is he must have known it; as a witness, he did not deny it.If counsel imply that plaintiff should have made a demand on George for the car, before instituting this action, the answer is, it would have been futile.Under the wording of the conditional sale contract in question, if George had been in possession of the car and in default, without deciding, we say we doubt if a demand on him for possession would have been necessary.Some authorities hold a demand, upon default, is necessary; others hold not.However, as George was not in possession, and was powerless to restore the car to plaintiff, a demand on him would have been useless, and the law does not require a useless act.Hence, clearly, demand on George for the car was not necessary.Plaintiff was proceeding to enforce his right of possession on account of George's undisputed default from failure to make his payments and failure to pay taxes on the car when he instituted this action.He had made a demand on defendants, the parties in possession, and the only parties who had the power to restore the car to plaintiff, but without avail.To enforce his rights, there was nothing for plaintiff to do but to institute this action, and he did so.We hold there is no merit in the contention of counsel.

Based upon another assignment of error, counsel for defendants contend replevin cannot be maintained to recover possession of property taken for a tax pursuant to statute, and, in that connection, counsel complain of the allegations in the complaint that the automobile was not taken for any tax pursuant to statute.

Section 9220,Revised Codes 1921, says:

"The plaintiff, in an action to recover possession of personal property, may, at the time of issuing summons, or at any time before answer, claim the delivery of such property to him, as provided in this chapter."Chapter 19, Code of Civil Procedure.

The next following section, 9221, says:

"When a delivery is claimed, an affidavit must be made by the plaintiff, or some one in his behalf, stating [among other things]; * * * 3.That the same [the property] has not been taken for a tax, assessment or fine, pursuant to statute; or seized, under an execution or an attachment against the property of the plaintiff; or, if so seized, that it is by statute exempt from seizure."

Such an affidavit is not an essential to...