Portland Cattle Loan Co. v. Biehl

• Decision Date: 03 January 1925
• Citation: 245 P. 88,42 Idaho 39
• Parties: PORTLAND CATTLE LOAN COMPANY, a Corporation, Appellant, v. ANDY A. BIEHL, Respondent
• Court: Idaho Supreme Court

245 P. 88

42 Idaho 39

PORTLAND CATTLE LOAN COMPANY, a Corporation, Appellant, v. ANDY A. BIEHL, Respondent

Supreme Court of Idaho

January 3, 1925

CHATTEL MORTGAGE - FORECLOSURE - EXCLUSIVE REMEDY - WAIVER OF LIEN.

Under C. S., sec. 6949, there can be but one action for the recovery of any debt or the enforcement of any right secured by a mortgage upon real or personal property, and where the holder of a chattel mortgage upon a herd of cattle foreclosed its mortgage on those that were voluntarily turned over, it could not thereafter maintain a separate action in claim and delivery for the recovery of the animals held by a third party under the claim of an agister's lien.

APPEAL from the District Court of the Eleventh Judicial District for Cassia County. Hon. T. Bailey Lee, Judge.

Action in claim and delivery. Judgment for respondent. Affirmed.

Judgment affirmed. Respondent to recover costs.

Morris & Griswold and Karl Paine, for Appellant.

The contention of respondent that the confession of judgment constituted an election on the part of appellant not to enforce its mortgage lien against the cattle in question or constituted such a merger of its mortgage lien in the lien of the judgment as to destroy it, prostitutes the principles of law invoked to support it. (Westheimer v. Thompson, 3 Idaho 560, 32 P. 205; Wilson v. Linder, 21 Idaho 576, 578, Ann. Cas. 1913E, 148, 127 P. 487; 27 Cyc. 1377 et seq.; 19 R. C. L. 484; Pugh v. Sample, 123 La. 791 49 So. 526, 39 L. R. A., N. S., 834, and note thereto; Whitley v. Spokane Ry. Co., 23 Idaho 642, 132 P 121; Boise Development Co. v. Boise City, 30 Idaho 675, 167 P. 1032.)

Appellant was authorized to institute the present action to recover the steers, or their value. (First Nat. Bank of St. Anthony v. Steers, 9 Idaho 519, 108 Am. St. 174, 75 P. 225.)

C. S., sec. 6949, is not applicable to the facts of this case for the following reasons: (a) The inhibition against a plurality of actions is limited to a case where the mortgage given is collateral to the particular right which the action is brought to enforce. (Vandewater v. McRae, 27 Cal. 596.) This provision, being clearly designed for the protection of the primary debtor, is one which he not only can waive, but it is one which has no applicability whatever unless the action which is brought directly affects his rights under the mortgage contract. The mortgage only affects the remedy against the mortgagor or primary debtor. (Martin v. Becker, 169 Cal. 301, Ann. Cas. 1916D, 171, 146 P. 665.)

The restriction of remedies to a foreclosure of the mortgage is not applicable in suits against strangers. (King v. Harford, 48 Cal.App. 405, 191 P. 998; Gray v. Davison, 78 Wash. 482, 139 P. 219; First Nat. Bank v. Commercial Union Assur. Co., 40 Idaho 236, 232 P. 899; Blumberg v. Birch, 99 Cal. 416, 37 Am. St. 67, 34 P. 102; Merced Security Sav. Bank v. Casaccia, 103 Cal. 641, 37 P. 648; Craig v. Burns, 65 Mont. 550, 212 P. 856; Murphy v. Hellman Commercial Trust & Savings Bank, 43 Cal.App. 579, 185 P. 485.)

The foreclosure proceeding resulted in a deficiency judgment against the mortgagor, and when the security failed to extinguish the debt the mortgagee had the right to proceed against any person who had converted any part of the security, and this right was in nowise dependent upon whether the one so converting was or was not a party to the foreclosure proceeding. (German-American State Bank v. Seattle Grain Co., 89 Wash. 376, 154 P. 443; Boydston v. Morris, 71 Tex. 697, 10 S.W. 331.)

One who has put the mortgaged property beyond the reach of the mortgagee cannot complain that the mortgagee does not proceed against the property, or sue in trover, and is in no position to determine for the mortgagee his choice of remedies. (Bollen v. Wilson Creek Union Grain & Trading Co., 90 Wash. 400, 156 P. 404.)

The lien of the mortgage was not extinguished by merger in the deficiency judgment. (Beecher v. Thompson, 120 Wash. 520, 29 A. L. R. 699, 207 P. 1056; Westheimer v. Thompson, 3 Idaho 560, 32 P. 205; Factors & Traders' Ins. Co. v. Murphy, 111 U.S. 738, 4 S.Ct. 679, 28 L.Ed. 582; First National Bank v. Northwestern Elevator Co., 4 S.D. 409, 57 N.W. 77; Muncie Nat. Bank v. Brown, 112 Ind. 474, 14 N.E. 358; Swedish-American Nat. Bank v. Dickinson Co., 6 N.D. 222, 69 N.W. 455, 49 L. R. A. 285; Cassidy & McFadden v. Saline County Bank, 7 Ind. Ter. 543, 104 S.W. 829; Gilmore v. Kilpatrick-Koch Dry Goods Co., 101 Iowa 164, 70 N.W. 175.)

The sufficiency of appellant's pleadings cannot be tested by a motion for nonsuit. (Ludwig v. Ellis, 22 Idaho 475, 126 P. 769; Mole v. Payne, 39. Idaho 247, 227 P. 23; Coulsen v. Aberdeen-Springfield Canal Co., 39 Idaho 320, 227 P. 29, 31.) Under any theory of the case, appellant is entitled to the benefit of every presumption and inference that the court can legitimately draw from the admitted allegations of the supplemental complaint. (Marshall v. Gilster, 34 Idaho 420, 201 P. 711; Smith v. Marley, 39 Idaho 779, 230 P. 769.)

In order to establish waiver the intention to waive must clearly appear, and it will not be presumed or implied contrary to the intention of the party whose rights would be injuriously affected thereby unless, by his conduct, the opposite party was misled to his prejudice into the honest belief that such waiver was intended or consented to. (City of Coeur d'Alene v. Spokane etc. R. R. Co., 31 Idaho 160, 169 P. 930; Neitzel v. Lawrence, 40 Idaho 26, 231 P. 423.)

W. W. Mattinson and S. T. Lowe, for Respondent.

The appellant waived the mortgage lien, elected its remedy and exhausted its right to proceed further, either upon the notes or the security. (C. S., sec. 6949; Cederholm v. Loofborrow, 2 Idaho 191, 9 P. 641; Ould v. Stoddard, 54 Cal. 513; Brice v. Walker, 50 Cal.App. 49, 194 P. 721; DeLaval Pacific Co. v. United Cleaners & Dyers Co., 65 Cal.App. 584, 224 P. 766.)

Under the provisions of C. S., sec. 6949, in the case of a chattel mortgage securing the payment of a promissory note there can be but one action for the enforcement of the debt secured thereby, and where the plaintiff sues upon the note and prosecutes it to judgment, this constitutes a waiver of the remedy by foreclosure of the mortgage. (Craiglow v. Williams, 45 Cal.App. 514, 188 P. 76; Brown v. Willis, 67 Cal. 235, 7 P. 682; McKeen v. German American Sav. Bank, 118 Cal. 334, 50 P. 656; Woodward v. Brown, 119 Cal. 283, 63 Am. St. 108, 51 P. 2, 542; Meyer v. Weber, 133 Cal. 681, 65 P. 1110; Crisman v. Lanterman, 149 Cal. 647, 117 Am. St. 167, 87 P. 89; Gnarini v. Swiss American Bank, 162 Cal. 181, 121 P. 726.)

The plaintiff was only authorized to institute the action against the defendant to recover possession of the personal property described in the complaint of the plaintiff because of the existence of the mortgage. (First Nat. Bank v. Steers, 9 Idaho 519, 108 Am. St. 174, 75 P. 225; Rein v. Callaway, 7 Idaho 634, 65 P. 63; Marchand v. Ronaghan, 9 Idaho 95, 72 P. 731.)

When a mortgage is enforced against a part of the security, the mortgagee thereby waives his mortgage as to the remainder of the security. (Mascarel v. Raffour, 51 Cal. 242; Brown v. Willis, 67 Cal. 235, 7 P. 682; Hall v. Arnott, 80 Cal. 348, 22 P. 200; Craiglow v. Williams, 45 Cal.App. 514, 118 P. 76; Gnarini v. Swiss American Bank, 162 Cal. 181, 121 P. 726; Crisman v. Lanterman, 149 Cal. 647, 87 P. 89; Meyer v. Weber, 133 Cal. 681, 65 P. 1110; Woodward v. Brown, 119 Cal. 283, 63 Am. St. 108, 51 P. 2, 542; McKeen v. German American Bank, 118 Cal. 334, 50 P. 656; Toby v. Oregon P. R. Co., 98 Cal. 490, 33 P. 550; Barbieri v. Ramelli, 84 Cal. 154, 23 P. 1086; Biddel v. Brizzolara, 64 Cal. 354, 30 P. 609; Berg v. Carey, 40 Idaho 278, 232 P. 904.)

When the mortgagee proceeded to take a personal judgment against the mortgagor, he thereby waived his mortgage and accepted the personal liability of the mortgagor. (Commercial Bank of Santa Ana v. Kerchner, 120 Cal. 495, 52 P. 848; Stockton Savings & Loan Co. v. Harrold, 127 Cal. 612, 60 P. 165; Evans v. Warren, 122 Mass. 303; Whitney v. Farrar, 51 Me. 418; Dyckman v. Sevatson, 39 Minn. 132, 39 N.W. 73.)

There was a privity of interest in the property mortgaged between the mortgagor and the respondent, and the mortgagor could not, therefore, waive the statute. (Utah Association of Credit Men v. Jones, 49 Utah 519, 164 P. 1029.)

The foundation for plaintiff's action was the existence of the mortgage, and when it waived its security by foreclosing on a portion of the security and taking a judgment for the deficiency, it waived its right to maintan its action. (Dix v. Smith, 9 Okla. 124, 60 P. 303, 50 L. R. A. 714.)

WILLIAM A. LEE, J. McCarthy, C. J., and Wm. E. Lee, J., concur.

OPINION

WILLIAM A. LEE, J.

Appellant brought an action in claim and delivery to recover from respondent 176 head of cattle which were included in a chattel mortgage held by appellant. The cause was tried to a jury, and after appellant had rested respondent moved for a nonsuit, which was granted. From the judgment of dismissal entered against appellant this appeal has been taken, it being assigned that the court erred in sustaining the motion for nonsuit and in rendering the judgment of dismissal.

In its complaint appellant alleged that one H. E. King had executed to it a chattel mortgage on some 700 head of cattle; that respondent had taken possession of and was detaining 176 head of steers covered by said mortgage; that demand had been made upon respondent to turn over the possession of said animals to appellant, but that respondent withheld said property from appellant. The complaint then prayed for judgment for recovery of said personal property from respondent or the value thereof. Issue was formed by way of answer...