Steidl v. Aitken

• Decision Date: 30 March 1915
• Citation: 152 N.W. 276,30 N.D. 281
• Parties: STEIDL v. AITKEN.
• Court: North Dakota Supreme Court

30 N.D. 281

152 N.W. 276

STEIDL

v.AITKEN.

Supreme Court of North Dakota.

March 30, 1915.

Syllabus by the Court.

A mortgagee. who under the insecurity clause in his mortgage, seeks to obtain the possession of the property mortgaged, and does so maliciously and by force or fraud, is a trespasser, and as such is guilty of wrongful conversion which, under the provisions of section 6721, Compiled Laws of 1913, extinguishes the lien of the mortgage.

The provision contained in section 6721, Comp. Laws 1913, which provides that, even though the wrongful conversion of the mortgaged property by the mortgagee will extinguish the lien of the mortgage, such mortgagee may, if an action is brought for the conversion of the property, prove the amount of the debt secured by the mortgage in mitigation of damages, does not apply to actions in claim and delivery.

Even in an action of conversion against the mortgagee for the wrongful seizure of mortgaged property, such mortgagee must plead and prove the amount of his mortgage debt if he seeks to mitigate the damages for such unlawful seizure.

In a claim and delivery proceeding in which the plaintiff is shown to be entitled to the possession of property seized by the defendant, and in which the trial is had to a court without a jury, and in which no demand is made for a specific valuation of the property, a judgment for the return of the property which is specified, or in the alternative for the payment of a certain sum, being the aggregate value thereof, in case said return cannot be had, is not invalid because of a lack of a specific valuation of each article in said judgment. Smith v. Willoughby, 24 N. D. 1. 138 N. W. 7.

Although in an action of claim and delivery, in cases where a return of the property cannot be had and a judgment in the alternative is directed for the value thereof, such judgment may be in the aggregate, it need not specify the value of each article. unless a demand for such specification has been made upon the trial.

Appeal from District Court, Walsh County; Kneeshaw, Judge.

Action by Joseph Steidl against David Aitken and another. From judgment for plaintiff, the defendant named appeals. Affirmed.

H. C. Depuy, of Grafton, for appellant. H. A. Libby, of Grand Forks, for respondent.

BRUCE, J. (after stating the facts as above).

In the case before us the findings of the court have the same effect as those of a jury. We cannot say that there is not only some, but much, competent and credible testimony in support thereof; and, such being the case, we are bound thereby. Jasper v. Hazen, 4 N. D. 1, 58 N. W. 454, 23 L. R. A. 58.

This is an action in claim and delivery to recover the possession of certain horses and other personal property and damages for the detention thereof. The case was tried by the court without a jury. The learned trial judge, among other things, found that on September 9, 1912, the plaintiff, Joseph Steidl, was the legal and rightful owner and in possession of the property in controversy; that on the said 9th day of September, 1912, the defendants wrongfully and unlawfully seized and took said personal property out of the custody and possession of the plaintiff, and that such seizure was made under the instructions of the defendant, David Aitken; that at the time of such seizure and taking the defendant was absent from the immediate place of seizure; that said property was on the highway five miles from Park River and in the possession of the plaintiff's servants or hired men; that such seizure and taking was accomplished by fraud by the defendants; that the defendant Catherwood at said time represented that he was an officer of Walsh county, N. D., and that he had the necessary and sufficient papers to take said property, and partly exhibited to the said agents and employés of the plaintiff some kind of papers, but did not remove said papers from his pocket or from the envelope in which they were incased, but did in fact represent and state to said agents and servants that he was an officer of the law, and that he had the necessary papers, and that he then ordered and directed the said servants and agents of plaintiff to turn about and drive said property back to Park River; that the said servants, believing it to be their duty to obey the said Catherwood as an officer of the law clothed with proper papers, complied with the demand; that the said Catherwood was not acting as an officer of the law, nor did he have in his possession any papers in claim and delivery or any attachment or any papers or court process whatever, nor had any action for the recovery of the possession of said property been instituted in Walsh county; that said taking was wrongful, unlawful, and malicious; that the only papers that the said Catherwood had in his possession were some promissory notes and a chattel mortgage which covered only a part of the property; that on arriving at Park River, the said property was turned over immediately to the defendant David Aitken; that the plaintiff made a personal and persistent demand upon the defendants for a return of said property; that the defendants, each and both of them, refused to return the same; that within a short time after the horses had been placed in a livery barn, the plaintiff and two of his agents and servants attempted peaceably and quietly to recover the possession of the same, but the same were retaken by the defendant Andrew Catherwood by force and threats. The court further found that the defendant Aitken claimed that the plaintiff Steidl became indebted to him in the sum of $1,400 on or about August 2, 1912, and that the plaintiff made, executed, and delivered to the said Aitken a chattel mortgage on the said property, but that none of the promissory notes which the said mortgage attempted to secure, nor any part of the said $1,400, was due until long after September 9, 1912. The court further found that no default had been made in the conditions of the notes and mortgage at the time of said seizure, and that as a matter of fact the security was not unsafe or insecure. The court further found the aggregate market value of the personal property and the specific value of each article.

Upon the foregoing findings of fact the learned trial judge made the following conclusions of law:

“(1) That the plaintiff was at all times herein mentioned and now is the owner of the personal property, hereinbefore described, and that the same was wrongfully and unlawfully seized and taken from him by the said defendants, as hereinbefore stated and found, and that the plaintiff is entitled to the immediate possession and return of each and all of the said personal property so seized and taken by the defendants. as hereinbefore described, and that the same be returned and delivered back into the possession of the plaintiff, and in case a return delivery or possession thereof cannot be made or had, then that the plaintiff have judgment against the defendant, David Aitken, for the actual value of the said personal property, to wit, for and in the sum of $650. (2) That as a matter of law, no default of any kind existed in the chattel mortgage to the defendant Aitken, under which he alone and only claimed and claims said property and his right to the possession thereof, and, further, that neither of the said defendants was or is entitled to the possession of said property, or any part thereof, and that the seizure and taking of said property from the plaintiff, by the defendants as herein before stated and found, was wrongful, unlawful, and malicious. That under the undisputed facts in this case the defendant Aitken's remedy, if any at all, existing on September 9, 1912, was by proper and orderly action in claim and delivery, and that the law will not permit the defendants, or either of them, to justify their action in this case under the said chattel mortgage, no default having been made on the terms and conditions of said mortgage. (3) That the plaintiff is entitled to recover judgment against the defendant David Aitken for the sum of $300 as damages for the unlawful and wrongful taking and detention of said property. (4) That the action is dismissed as to the defendant Catherwood without costs, as the evidence discloses that he was not in possession or control of the personal property at the time of the commencement of this action, but plaintiffwas justified, under the circumstances of the case, in making him a party defendant. (5) That plaintiff is entitled to judgment against the defendant David Aitken for his costs and disbursements, to be taxed by the clerk.”

On these findings and conclusions of law judgment was entered in favor of the plaintiff for the immediate return of the property mentioned, with the alternative that if such return and delivery could not be had forthwith, the plaintiff should have judgment in the sum of $650, the...