Swanson v. Olsen

• Decision Date: 30 October 1923
• Citation: 220 P. 407,38 Idaho 24
• Parties: THEODORE SWANSON, Respondent, v. N. T. OLSEN, Appellant
• Court: Idaho Supreme Court

220 P. 407

38 Idaho 24

THEODORE SWANSON, Respondent, v. N. T. OLSEN, Appellant

Supreme Court of Idaho

October 30, 1923

LANDLORD AND TENANT-UNLAWFUL DETAINER-RENT, SECURITY FOR-CHATTEL MORTGAGE-NONSUIT-AMENDMENTS-EVIDENCE.

1. Where plaintiff makes a prima facie case in unlawful detainer, it is not error for the court to refuse to grant a motion for nonsuit.

2. Held, where a landlord has security for his rent he is not precluded from a recourse to the remedy of unlawful detainer for restitution of the premises, even though he has begun foreclosure proceedings to recover the rent due.

3. An action in unlawful detainer is a possessory action, and the taking of security does not deprive the landlord of the right to restitution of the premises as provided by statute.

4. The legality of proceedings to foreclose a chattel mortgage given as security for rent is not subject to review in an action in unlawful detainer.

5. The granting or refusing of amendments is addressed to the sound discretion of the trial court, and unless there is an abuse of such discretion the ruling thereon will not be disturbed on appeal.

APPEAL from the District Court of the Fifth Judicial District, for Bannock County. Hon. Ralph W. Adair, Judge.

Action in unlawful detainer. Judgment for plaintiff. Affirmed.

Judgment of the trial court sustained. Costs awarded to respondent.

J. M Stevens, for Appellant.

There can be no money judgment in an action to foreclose a mortgage, either real or chattel, until the exhaustion of the mortgaged security, after which a money judgment may be entered for any deficiency. (Barnes v. Buffalo Pitts Co., 6 Idaho 519, 57 P. 267.)

A holder of a note secured by mortgage may not maintain an action at law, without foreclosing, unless the security has become valueless. (Clark v. Paddock, 24 Idaho 142 132 P. 795, 46 L. R. A., N. S., 475.)

A mortgagee who by his own illegal acts disposes of mortgaged property cannot thereafter maintain an action for the balance due on the mortgage debt. (Rein v. Callaway, 7 Idaho 634, 65 P. 63.)

William Edens, for Respondent.

"The fact that the landlord has security for his rent does not preclude a recourse to the remedy of unlawful detainer, for that is a possessory action, and it was not intended by legislature that the taking of security should deprive the landlord of the rights conferred by the statute." (Arnold v. Krigbaum, 169 Cal. 143, Ann. Cas. 1916D 370, 146 P. 423; Toplitz v. Standard Co., 25 Cal.App. 575, 143 P. 52; Ashcroft Estate Co. v. Nelson, 26 Cal.App. 400, 147 P. 101.)

C. S., sec. 6949, which provides that there can be but one action for the recovery of any debt or the enforcement of any right secured by any mortgage upon real or personal property has no application in an unlawful detainer action, as unlawful detainer action is primarily a possessory action which cannot be defeated or delayed by the fact that the landlord has taken security for his rent. (Toplitz v. Standard Co., supra.)

BUDGE, C. J. McCarthy, Dunn and Wm. E. Lee, JJ., concur.

OPINION

BUDGE, C. J.

This is an action in unlawful detainer. From the record it appears that on January 7, 1919, respondent leased to appellant a certain farm for a period of five years at an agreed annual rental of $ 1,835.55, payable on the first day of November of each year. The lease provided, among other things, that: "the party of the second part agrees that he will, to secure the payment of said rental, make, execute and deliver to the party of the first part, each and every year during the term of this lease, a crop mortgage upon all of the crops to be raised on the said premises during the respective year for which the crop mortgage is given." And also that: "should the party of the second part . . . . fail to make the above payments as herein specified, . . . . then and in that case it shall be lawful for the said party of the first part . . . . to re-enter and take full and absolute possession of the above rented premises and hold and enjoy the same fully and absolutely, without such re-entering working a forfeiture of the rents to be paid and the covenants to be performed by the said party of the second part."

On August 5, 1920, to secure the payment of the rent for the year 1920, as in the lease provided, appellant made, executed and delivered to respondent a chattel mortgage upon the crops growing on said premises. Appellant failed to pay the rent on November 1, 1920. On November 6, 1920, respondent commenced summary proceedings by notice and sale to foreclose the chattel mortgage and on November 10, 1920, caused a notice to pay rent or surrender possession within three days, as provided by C. S., sec. 7322, to be served upon appellant. Upon appellant's failure to comply with the demand contained in the notice he thereupon commenced this action in unlawful detainer to obtain possession of the premises, the complaint being filed on November 15, 1920. It should be noted that the complaint in the first instance prayed only for restitution of the premises. Appellant in his answer set up as affirmative defenses the summary foreclosure of the chattel mortgage alleging that respondent having adopted that remedy he was estopped to maintain the present action and also that respondent having failed to make demand upon appellant for peaceable possession of the mortgaged chattels the foreclosure proceedings were invalid and it was impossible to determine the amount of rent due to respondent. On April 7, 1921, the cause was tried to the court sitting without a jury. Evidence was introduced by respondent tending to show breach of the terms of the lease and also the amount of rent due. The sheriff's return of sale was admitted in evidence showing that $ 375 was realized by respondent upon the sale of the mortgaged chattels and applied upon the rent due. Respondent's complaint alleged that rent due for the first year of the lease was due and unpaid. The proof showed that the rent due was for the second year and on application the court permitted the complaint to be amended to conform to the proof. At the close of respondent's testimony a motion for nonsuit was made by appellant, which was overruled by the court. Appellant declining to introduce evidence, the court took the matter under advisement and on April 11, 1921, announced its decision to the effect that respondent was entitled to restitution of the premises and judgment for $ 1,460.55 rental due for the year 1920, and directed counsel for respondent to prepare findings and conclusions. On April 19, 1921, upon application, the court permitted respondent to amend his complaint to conform to the proof as will be hereafter noted. On the same day, to wit, April 19, 1921, the court signed findings and conclusions of law and entered an alternative...