Stein v. McAuley

• Decision Date: 15 March 1910
• Citation: 147 Iowa 630,125 N.W. 336
• Parties: STEIN v. MCAULEY ET AL.
• Court: Iowa Supreme Court

147 Iowa 630

125 N.W. 336

STEIN

v.MCAULEY ET AL.

Supreme Court of Iowa.

March 15, 1910.

Appeal from District Court, Polk County; W. H. McHenry, Judge.

Suit in equity for the foreclosure of a chattel mortgage upon certain household goods. Defendants pleaded a waiver of the mortgage and an estoppel, based upon an attachment of the goods by the plaintiff in a civil suit against them. Plaintiff by motion challenged these defenses, but his motion was overruled. The case was then tried to the court, resulting in a decree dismissing the petition. Plaintiff appeals. Reversed and remanded.F. F. Keithley and John Newburn, for appellant.

Bailey & Stipp and O. M. Slaymaker, for appellees.

DEEMER, C. J.

Our attention upon oral argument was called to the fact that the record showed no jurisdiction in this court, for the reason that there is no showing that any decree had ever been entered in the case. This point is not raised in any of the printed matter filed in the case. There is nothing in appellees' contention, for the reason that the record shows all the orders and the judgment complained of. Moreover, it is provided by statute that: “All objections to the jurisdiction of the court to entertain an appeal must be made in printed form stating specifically the ground thereof and served upon the appellant or his attorney of record not less than ten days before the date assigned for the submission of the cause.” Chapter 206, Acts 33d Gen. Assem. This statute not having been followed, the point could not be considered, even were there anything in it as disclosed by the abstract.

2. There are two main questions in the case, and these are: First, did plaintiff waive his right to foreclose the chattel mortgageby reason of his levy upon the goods covered by the mortgage; and, second, is he estopped from foreclosing the mortgage because he caused defendant to go to expense in defending against the attachment? The facts are that, before commencing this action to foreclose the chattel mortgage, plaintiff brought suit against the defendants and others to recover judgment upon the note secured by the mortgage, and in that action caused a writ of attachment to be issued, which was levied upon all the mortgaged property, as well as some other goods not covered by the mortgage. Defendants were just starting to move to another town, and by reason of the attachment they were delayed somewhat, had to secure a delivery bond for the release of the property, and to employ lawyers to defend against the attachment. The original attachment suit, which was before a justice, was continued once or twice, and finally dismissed by plaintiff on the theory, as is now asserted, that the goods were exempt from attachment. This dismissal was entered without prejudice on the 15th day of February, 1909, and this suit to foreclose was brought on the 18th day of the same month. On these facts the trial court rendered judgment for the amount of the note in suit less payments, but denied the right of foreclosure, upon the theory that plaintiff had waived his mortgage, and was estopped from relying thereon.

The courts of the country do not seem to be agreed upon the first question presented for our determination, but the disagreement is more apparent than real. Upon the broad proposition it seems that the courts of Massachusetts, Maine, New Hampshire, Minnesota, Arkansas, and Oklahoma are committed to the doctrine that an attachment of the mortgaged property waives the lien of the mortgage. See Evans v. Warren, 122 Mass. 303; Whitney v. Farrar, 51 Me. 418; Haynes v. Sanborn, 45 N. H. 429;Dyckman v. Sevatson, 39 Minn. 132, 39 N. W. 73;Cox v. Harris, 64 Ark. 213, 41 S. W. 426, 62 Am. St. Rep. 187;Dix v. Smith, 9 Okl. 124, 60 Pac. 303, 50 L. R. A. 714. On the other side are the following: Madson v. Rutten, 16 N. D. 281, 113 N. W. 872, 13 L. R. A. (N. S.) 554;Byram v. Stout, 127 Ind. 195, 26 N. E. 687;Barchard v. Kohn, 157 Ill. 579, 41 N. E. 902, 29 L. R. A. 803;Howard v. Parks, 1 Tex. Civ. App. 603, 21 S. W. 269;State Bank v. Mottin, 47 Kan. 455, 28 Pac. 200, 27 Am. St. Rep. 306;First Bank v. Johnson, 68 Neb. 641, 94 N. W. 837;Thurber v. Jewett, 3 Mich. 295. In so far as we have been able to discover, this question has never heretofore been decided by this court, so that we are free to adopt that rule which seems to be best supported by authorities and sound reason. The whole doctrine of waiver is based upon the theory that the respective liens are essentially different, and cannot coexist. See Evans v. Warren, supra. When, then, a chattel mortgage conveys the legal title to the mortgagee, as in Massachusetts and some of the other states, affirming the doctrine of waiver, it is manifest that the conclusion reached in these jurisdictions is correct; for it is elementary, of course, that one may not attach his own property. But where the mortgage creates a mere lien upon the property, as in this state (see Code, § 2911), the reason for the rule does not exist, and in such cases the rule itself is inapplicable. This distinction is pointed out in the cases from Illinois, Indiana, and Nebraska heretofore cited. In this state the mortgagor has an equity of redemption under a chattel mortgage, which may be levied upon and sold (see Code, §§ 3905, 3979); and, if this may be done, we see no reason why a mortgagee of the property may not himself levy upon this equity in the property itself without waiving his mortgage lien. In such a case he is not asserting title in himself in one proceeding and levying upon it in another. His rights, then, are simply cumulative, and in no sense inconsistent. This distinction is now generally recognized by courts and text-writers. See Jones on Mortgages (5th Ed.) § 565; 7 Cyc. p. 55, E; Byram v. Stout, supra; Barchard v. Kohn, supra; First Bank v. Johnson, supra. Moreover, it is quite generally held that, if the attachment suit does not go to judgment, there is no waiver. See Thurber v. Jewett, supra; Ellinwood v. Holt, 60 N. H. 57; Dyer v. Cady, 20 Conn. 563; Conway v. Wilson, 44 N. J. Eq. 457, 11 Atl. 734; Madson v. Rutten, supra. Even in those states which adhere to the doctrine of waiver it is generally held that, if the title be in the mortgagor, and there be an equity of redemption subject to levy, there is no inconsistency in the two liens, and that an attachment of the property does not amount to a waiver of the mortgage lien. See Whitmore v. Tatum, 54 Ark. 457, 16 S. W. 198, 26 Am. St. Rep. 56, and, as supporting the same view, Cochrane v. Rich, 142 Mass. 15, 6 N. E. 781;Clark v. Ward, 12 Grat. (Va.) 440. It may be said in this connection that, while we have not heretofore decided this question, we have absolutely refused to follow the doctrine announced in the Oklahoma case of Dix v. Smith, supra. See Webster City Grocery Co. v. Losey, 108 Iowa, 687, 78 N. W. 75. This whole matter is so thoroughly covered by the cases cited in a valuable note to Dix v. Smith, supra, 50 L. R. A. 714, that nothing further need be added.

3. We do not think there was a waiver of the mortgage lien, especially in view of the fact that the attachment was dismissed and never...