Appeal
from Eighteenth Judicial District Court, Hill County; Frank
E. Carleton, Judge.
Action
by Clarence W. Trudell against the Hingham State Bank of
Hingham. From a judgment for plaintiff and an order denying a
new trial, defendant appeals. Affirmed.
GALEN
J.
In this
case the plaintiff seeks to recover $3,000 as damages from
the defendant for the alleged conversion of a gas tractor
John Deere plow, and separator. It appears that the plaintiff
as the owner of such property, on or about July 12, 1917
mortgaged the same to the defendant as security for
indebtedness, and on April 9, 1919, the plaintiff being in
default in payments due on his debt, the defendant caused the
property to be sold by the sheriff under the terms of the
mortgage. The plaintiff contends that the sale was irregular,
in that part of the property, at the time of sale, was in one
place and part in another; that it was not in sight at the
time of the sale, and was not sold at the place designated in
the published notice of sale; and that because thereof the
sale was void and amounted to a conversion of the property.
After
issue joined, the case was tried to a jury and resulted in a
verdict and judgment in favor of plaintiff for the sum of
$468.54 and costs. The appeal is from the judgment and order
denying defendant's motion for a new trial.
Though
several errors are assigned, in our opinion the questions
presented determinative of this case are: Was the sale legal,
and, if not, did the sale thereof constitute a conversion?
The
mortgage was given as security for an indebtedness to the
defendant of $460 represented by two promissory notes. The
power of sale contained in the mortgage provides:
"But
in case default be made in payment of the principal or
interest as provided in said promissory notes, then the
said mortgagee, his (its) agent, attorney or assigns are,
or the sheriff of any county in which the above-described
property or any part thereof may be, is hereby empowered
and authorized to sell the said goods and chattels, with
all and every of the appurtenances, or any part thereof,
and out of the money arising from such sale to retain the
said principal and interest together with the costs and
charges of making such sale, and reasonable attorney's
fee, and the overplus, if any there be, shall be paid by
the party making such sale to the said mortgagor, heirs or
assigns. The sale under the said power of sale shall be
advertised by notice posted in five public places in said
county, one of which shall be posted at the designated
place of sale at least five days prior to such sale, giving
the time and place of sale and a description of the
property to be sold. Such sale must be at public sale and
the mortgagee may become a purchaser thereat."
These
provisions of the mortgage are in conformity with section
8286, R. C. M. 1921, reading in part as follows:
"It
is lawful for the mortgagor of personal property to insert
in his mortgage a clause authorizing the sheriff of the
county in which said property, or any part thereof, may be,
to execute the power of sale therein granted to the
mortgagee, his legal representative and assigns, in which
case the sheriff of such county, at the time of default, at
the request of the mortgagee, must, and it is hereby made
his duty to advertise and sell the whole or any part of the
mortgaged property, wherever it may be, in the manner
provided in such mortgage. * * * Notice of sale shall be
given by posting five notices in five public places in the
county wherein the property is to be sold, one of which
shall be posted at the designated place of sale."
Notices
of the sale were posted as shown by the sheriff's
affidavit of posting, as follows:
"One
at Telephone Pole in Twp. 32--12. One at Post in Twp. 33
Rge. 11. One at Sec. 6 Twp. 32, Rg. 12. One at Post in Twp.
33 Rge. 11. One at Sec. 13, Twp. 33 Rg. 11, being the
designated place of sale."
The
notice so posted reads, in part, as follows:
"And
whereas, there is now due and unpaid on said indebtedness to
the said mortgagee, the sum of five hundred sixty dollars
($560.00):
Now
therefore, the property described in said mortgage, to wit
one 25 horse Mpls. gas tractor, one 6 bottom John Deere plow
one Mpls. 32--56 separator, or so much thereof as may be
necessary, will be sold pursuant to the power of sale in said
mortgage contained, which has become operative, and to the
statute in such case made and provided at public sale to the
highest bidder for cash on the 9th day of April, 1919, the
said tractor and plow at 1 o'clock p. m. of said day at
the farm house situated on the S1/2 of section 13, township
33 N. of range 11E, Hill county, Montana, and the said
separator at 2 o'clock p. m. said day at the farm
situated on the NW1/4 of section 6, township 32 N. of range
12 E., Hill county, Montana, * * * to satisfy the...
