Stevens v. Curran

• Decision Date: 08 June 1903
• Citation: 72 P. 753,28 Mont. 366
• Parties: STEVENS et al. v. CURRAN, Sheriff, et al.
• Court: Montana Supreme Court

72 P. 753

28 Mont. 366

STEVENS et al. v. CURRAN, Sheriff, et al.

Supreme Court of Montana

June 8, 1903

Commissioners' Opinion. Appeal from District Court, Missoula County; F. K Woody, Judge.

Action by A. M. Stevens and others against D. T. Curran, sheriff and others. From a judgment in favor of plaintiffs defendants appeal. Affirmed.

W. J Stephens, for appellants.

J. M. Dixon, for respondents.

POORMAN C.

This is an action in conversion, originally commenced in a justice court of Missoula county, and taken by appeal to the district court of said county, where a trial was had by the court sitting without a jury, and judgment was rendered for plaintiffs. From this judgment, and the order of the court overruling a motion for a new trial, the defendants appeal.

The findings of fact made by the trial court are to the effect that one Mae Carrier, who was at that time engaged in the mercantile business at the city of Missoula, borrowed $500 from defendant W. J. Stephens, for which she gave her promissory note, and at the same time executed as security for payment of said note a chattel mortgage on her stock of merchandise, with a provision that the mortgage should extend to certain other articles of merchandise and store fixtures to be thereafter purchased by the mortgagor; that the mortgagee further provided that the mortgagor might remain in possession of the mortgaged property and carefully use the same, but that she should not sell or dispose of said property, or any part thereof, or allow it to be taken from her possession by legal process or otherwise; that the mortgagor, after the execution of the mortgage, remained in the possession of the stock of merchandise, and sold and disposed of the same in the usual course of trade, and purchased other goods, and added to the stock in her store; that the defendant Stephens had full knowledge of the sale of the merchandise, and knew of the manner in which the mortgagor was conducting the business and disposing of the merchandise, and that he made no objection to the same, but acquiesced therein; that no provision was made in the mortgage for an accounting by the mortgagor for any of the proceeds of the property sold, and that no part of the proceeds was applied to the payment of the debt secured by the mortgage, except the payment of the interest on the note; that the mortgagor, after the execution of the mortgage, continued, with the knowledge of defendant Stephens, to conduct the business and to sell the goods in the same manner as though the mortgage had not been executed; that the plaintiffs purchased from the said mortgagor, while she was so conducting the business, certain goods, wares, and merchandise, and by their agent took actual possession of the goods so purchased; that while they were in such possession, and after such purchase had been completed, the defendants Curran and Violette, acting as the sheriff and undersheriff of the county, and over the protest of the plaintiffs, took the goods from the plaintiffs under said chattel mortgage, at the request of the defendant Stephens, the mortgagee. At the time of the seizure the plaintiffs notified the sheriff that the mortgage was void as to the goods so purchased by them, but were informed by the sheriff that his duty required him to take possession of the goods, and that they could bring suit against him or defendant Stephens to recover the same.

It further appears from the record that the sheriff is still holding these goods.

The findings of the court are based either upon admissions by the parties, or upon evidence with respect to which there is substantial conflict; and, as has been repeatedly held by the Supreme Court of this state, cannot be disturbed under such circumstances. Merchants' Bank v. Greenhood, 16 Mont. 430, 41 P. 250, 851; Sanford v. Gates, 21 Mont. 288, 53 P. 749.

It is claimed by the respondents that the mortgage is fraudulent as to creditors and subsequent purchasers in good faith, by reason of the mortgagor being permitted to remain in possession of the goods, and to sell and dispose of them without making an accounting to the mortgagee. The appellants contend that the mortgage is valid on its face, and that by its terms the sheriff had the right to seize...