SanDager v. N. Pac. El. Co.

• Decision Date: 25 February 1891
• Parties: Sandager et al. v. Northern Pac. El. Co.
• Court: North Dakota Supreme Court

2 N.D. 3

48 N.W. 438

Sandager et al.

v.Northern Pac. El. Co.

Supreme Court of North Dakota.

Feb. 25, 1891.

Syllabus by the Court.

Plaintiffs were the owners of a chattel mortgage, properly filed. Among other provisions contained in the mortgage were the following: “And it is hereby agreed that if default be made in the payment of the said debt, or any part thereof, or if any attempt be made to remove or dispose of said property, or if at any time said mortgagees shall deem the said debt unsafe or insecure, or whenever they shall choose to so do, they are hereby authorized, either by themselves or agent, to enter upon the premises where the said property may be, and remove and sell the same,” etc. While the mortgage was in full force and unsatisfied defendant unlawfully took possession of the property covered by the mortgage, and converted the same to its own use. Held, that under the power to “remove and sell” the property the owner of the mortgage was authorized to take possession upon condition broken and that, having the right to take possession, they were also in a position to maintain an action against the defendant for the value of the mortgaged property, which defendant had unlawfully taken and converted.

Appeal from district court, Ransom county; W. S. Lauder, Judge.

A. C. Davis, for appellant. Rourke & Allen and Goodwin & Van Pelt. for respondents.

WALLIN, J.

This action is to recover the value of certain wheat, which the plaintiffs allege that the defendant has unlawfully converted. Plaintiffs base their right of recovery upon a certain chattel mortgage covering the wheat, a copy of which is annexed to the complaint, and made a part thereof. The complaint contains all necessary averments to show the plaintiffs' right of recovery, and is in no respect criticised, except as to that part thereof which has reference to the rights of the mortgagees upon a default. The conditions of the mortgage are as follows: “And it is hereby agreed that if default be made in the payment of said debt, or any part thereof, or if any attempt be made to remove or dispose of said property, or if at any time said mortgagees shall deem the said debt unsafe, or whenever they shall choose so to do, they are hereby authorized, either by themselves or agent, to enter upon the premises where the said property may be, and remove or sell the same, at public or private sale, without notice to the mortgagor, and without demand of performance, and out of the proceeds retain the amount then...