Reynolds v. Fitzpatrick
| Decision Date | 12 June 1899 |
| Citation | 57 P. 452,23 Mont. 52 |
| Parties | REYNOLDS v. FITZPATRICK, Sheriff, et al. |
| Court | Montana Supreme Court |
Appeal from district court, Deer Lodge county; Theo. Brantly, Judge.
Action by J. B. Reynolds against John Fitzpatrick and another, as sheriff and deputy sheriff. From a judgment in favor of defendants, plaintiff appealed. Reversed.
H. R Whitehill, for appellant.
W. H Tuppet, for respondents.
This action is for damages for the conversion of certain personal property by the defendants as sheriff and deputy sheriff of Deer Lodge county. Plaintiff stated his cause of action in two counts. In the first, after alleging the official capacities of the defendants, he set up that on August 23 1895, Maddux and Clark executed their promissory note to plaintiff, wherein they promised to pay to him or order $1,300, with interest, and that on the same day, to secure the payment of the note, they executed and delivered to plaintiff a chattel mortgage upon certain saloon property. It is alleged that Maddux and Clark did not pay the note, and that on December 2, 1895, the defendants, under and by virtue of certain writs of attachment issued out of a justice's court in actions against Maddux and Clark, attached and took into their possession the personal property described in the chattel mortgage, and that the defendants did not pay or tender to plaintiff the amount of his mortgage debt, with interest, or any part thereof, or deposit the amount thereof with the treasurer of the county, before they attached. Plaintiff pleaded a demand and refusal of payment, and asked judgment for $1,300, the value of the property. For a second cause of action, after referring to the facts set out in his first cause, and making them part of the second cause of action, plaintiff alleged that it was provided by the terms of the chattel mortgage referred to that in case of default of payment of the principal or interest, as provided in the promissory note of Maddux and Clark, plaintiff was empowered and authorized to sell all of the goods and chattels described in the said chattel mortgage in the manner prescribed by law; that, by the terms of the promissory note $100, with interest, was agreed to be paid by Maddux and Clark to plaintiff on December 1, 1895, but that the said sum was never paid; that it was also expressly provided by the terms of the mortgage that, if default was made in the payment of the principal or interest, as provided in the said note, or if, prior to maturity of the said promissory note, the property described in the said mortgage, or any part thereof, should be attached, seized, or levied upon by or at the instance of any creditor or creditors of Maddux and Clark, then, and in such event, or in either of such events, Reynolds, the mortgagee, should have the right to immediate possession of said goods and chattels, and of the whole and every part thereof. The complaint further alleged that on December 2, 1895, the property described in the mortgage was attached, levied upon, and seized by the defendants at the instance of Collins & Co., creditors of Maddux and Clark, the mortgagors, and that, by reason of said property having been attached, levied upon, and seized by the defendants as aforesaid, plaintiff became and was at the time of the attachment, levy, and seizure entitled to the immediate possession of the property included in the mortgage; that at the time of said levy, attachment, and seizure plaintiff was the owner, in possession of, and entitled to the possession of, the said goods and chattels, and that before the commencement of the suit he demanded of defendants possession of said goods and chattels. He then alleged that "by reason of the premises, and the defendants having obtained possession of said goods and chattels in the manner aforesaid, said defendants wrongfully converted and disposed of to their own use the property hereinbefore described, to the damage of plaintiff in the sum of $1,300." Judgment was asked against defendants, and each of them, for $1,300, with interest from December 2, 1895. The defendants, by answer, admitted the seizure and the sale of the property, but denied plaintiff's ownership, and denied the facts relating to the alleged conversion, and justified their action under the proceedings had in the justice's court on the ground that the mortgage was void as to the creditors of the mortgagors, because of certain defects in the affidavit of good faith required under the statute. Plaintiff, by replication, admitted that the proceedings were had in the justice's court under which the writs were issued, whereby the defendants seized the property, but alleged that the judgments were void, and of no effect, because the complaints therein did not state facts sufficient to constitute cause of action, and that the justice had no jurisdiction of the persons of the defendants or of the subject-matter of the actions referred to.
Upon these issues the case went to trial before the court and a jury. Plaintiff offered the chattel mortgage in evidence. Defendants objec ted upon the grounds that the affidavit required by the statute (section 3861, Civ. Code), was lacking. An inspection of the mortgage discloses that the purported affidavit reads as follows:
The particular objections of the defendants were that the words "or defraud" were left out of the purported affidavit after the words "hinder or delay," and furthermore, that there appeared no signature of any officer to the jurat. The plaintiff offered to prove by the notary before whom the acknowledgment was taken that the affidavit was in fact sworn to by the mortgagors, Maddux and Clark, and the mortgagee, Reynolds, but that he omitted to sign his name. The court would not allow this proof to be introduced, and held that under the first cause of action the mortgage was inadmissible, because it was void-First, for lack of an affidavit; and, secondly, because the words "or defraud" were left out; but ruled that the mortgage was admissible under the second cause of action, provided the plaintiff would follow its introduction by showing that he was in possession of the property at the time of the levy. The mortgage, which in its body is in the common form of statutory chattel mortgages, was made to secure the payment of the promissory note of Maddux and Clark to Reynolds for $1,300, payable as follows: $100 was to be paid on October 1, 1895, and $100 on the first of each and every month thereafter until paid, with interest at the rate of 1 percent. per month from date until paid. The mortgagors had the right to remain in possession and to use the property until default, provided, if default occurred in the payment of the principal or interest, or if, prior to the maturity of the indebtedness, the property should be attached, seized, or levied upon at the instance of any creditor of the mortgagors, the mortgagee should have the right to the immediate possession of the property, and should have the right, at his option, to take and recover such property from any person or persons having or claiming the same. Plaintiff, Reynolds, testified that Clark and Maddux bought the property from him, and gave him a mortgage to secure a note for $1,300, payable as heretofore set forth; that they paid $100 at the end of the first month, and $100 on November 1st; that about December 2d he asked Clark, who had succeeded Maddux and Clark, for $50, the amount due on the note on December 1st, not having been paid as required by the agreement; that Clark paid the $50 to plaintiff, which left a balance of $50 due and unpaid for December. One Hall met plaintiff about that time, and told him he was talking of buying Clark out. Plaintiff assented to a sale by Clark to Hall, and says he agreed with Hall that Hall might buy the property, and own it when he paid him (Reynolds) $1,300 at $100 a month. Hall then went to take possession. On cross-examination Reynolds said that the property had been transferred by Clark to Hall without there ever having been a delivery of possession to him (plaintiff) by Maddux and Clark; that is, that it was transferred directly by Clark to Hall, with Reynold's consent. He said that he notified the attaching creditors that the chattels seized were his property until he got his pay, and that he had a mortgage on the property, under which he claimed the property until it was paid for; that he referred to the mortgage of Maddux and Clark, and that he had had a like agreement between himself and Maddux. John A. Hall testified that on the 2d day of December, and before th e levy by the defendants, he bought Clark out, and paid him for his interest in the property, took possession and was in the actual possession of the property at the time of the levy by the defendants; that he had seen the plaintiff a few days before his purchase from Clark, and asked him how much was due on the mortgage from Clark and Maddux to him, and then told plaintiff that he was negotiating with Clark to buy him out. Witness stated that Reynolds told him to go ahead; that he would rather that witness had the property than Clark; that thereafter witness bought Clark out, and agreed with Reynolds to pay him (Reynolds) the balance on the mortgage, and that he then took possession of...
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