Secrest v. Wood

• Decision Date: 29 January 1924
• Docket Number: Case Number: 12784
• Citation: 98 Okla. 60,1924 OK 115,224 P. 349
• Parties: SECREST v. WOOD.
• Court: Oklahoma Supreme Court

1924 OK 115

224 P. 349

98 Okla. 60

SECREST v. WOOD.

Case Number: 12784

Supreme Court of Oklahoma

Decided: January 29, 1924

Syllabus

¶0 1. Chattel Mortgages--Right of Mortgagee to Replevin.

Where the surviving wife of a deceased mortgagor of personal property is in possession of the mortgaged property after maturity of the mortgage indebtedness, and no executor or administrator has been appointed, section 1220. Comp. Stat. 1921, does not preclude the mortgagee from maintaining an action of replevin against the surviving wife for the possession of the mortgaged property.

2. Same.

The right of the mortgagee to maintain an action of replevin for possession of mortgaged property for the purpose of foreclosure must be determined by the facts existing at the time the action was commenced and cannot be affected by tender by defendant of the amount of the mortgage indebtedness after service of the writ of replevin.

Commissioners' Opinion, Division No. 1

Error from District Court, Muskogee County; Guy F. Nelson, Judge.

Action by Henry Secrest against Mrs. J. C. Wood. Judgment for defendant, and plaintiff appeals. Reversed.

Watts & Watts and E. J. Broaddus, for plaintiff in error.

D. E. Herschelman, for defendant in error.

RAY, C.

¶1 The question here is. Can the mortgagee, after maturity of the mortgage indebtedness, maintain an action of replevin for possession of the mortgaged property against the surviving wife of the deceased mortgagor, where no executor or administrator has been appointed?

¶2 May 14, 1917, J.C. Wood mortgaged one cow and calf to Henry Secrest to secure the payment of two notes of $ 12.50 each, due June 14 and July 14, 1917, respectively. Thereafter Mrs. Wood left Wagoner county, where all the parties at the time resided, and removed the mortgaged property into Muskogee county in violation of the express terms of the mortgage. After the notes were due Secrest commenced a replevin action against Mrs. Wood before a justice of the peace in Muskogee county to recover possession of the mortgaged property. The case was appealed to the district court of Muskogee county, where a jury was waived and the case tried to the court. No redelivery bond was given and Secrest took the property back to Wagoner county and foreclosed the mortgage by posting notices and bought the property in at the sale. The cow was of the approximate value of $ 100. No executor or administrator for the estate of Woods, deceased, had ever been appointed. Judgment for Mrs. Wood against Secrest for $ 100, value of the property, $ 1 damages, and costs, and Secrest brings error.

¶3 It appears from the briefs that the trial court held that under the provisions of section 1220, Comp. Stat. 1921, the action could not be maintained until an executor or administrator had been appointed. The case of Litz, Administrator of the Estate of John R. Covey, Deceased, v. Exchange Bank of Alva, 15 Okla. 564, 83 P. 790, is cited and relied upon as so construing that section. That section does not deny the mortgagee the right of possession of the mortgaged property for the purpose of preserving his security but makes him liable for double the value of the property if alienated before the appointment of an executor or administrator and the cited case so holds. In that case the mortgagor was killed before the mortgage indebtedness was due and the mortgagee took charge of the mortgaged property and foreclosed by posting notices. Afterwards an administrator was appointed who commenced an action against the mortgagee under the statute to recover double the value of the property. The court said:

"The question presented to this court is whether or not the holder of a chattel mortgage, who in good faith deemed himself insecure, after the death of the mortgagor, who dies intestate before the debt is due, and prior to the appointment of an administrator, either a special or general, can take possession of and sell the property covered by said mortgage. * * *

"This action is based upon section 1603 of Wilson's Annotated Statutes of Oklahoma, of 1903 (section 1220, Comp. Stat. 1921

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