OPINION
FRICK
C. J.
This
action was commenced by the plaintiff, as trustee in
bankruptcy of the bankrupt estate of one A. F. Engberg, to
recover certain personal property claimed by,
and in the possession of, the defendant Jones. The facts are
not in dispute. The
findings of the court, which fairly reflect the pleadings and
the evidence, in substance are:
That on
the 27th day of June, 1914, the A. F. Engberg aforesaid was
duly adjudged a bankrupt, and that thereafter the plaintiff
was duly appointed trustee in bankruptcy of said
bankrupt's estate. That the trustee is entitled to the
property belonging to said bankrupt's estate. "That
on the 2d day of January, 1914, said A. F. Engberg was
indebted to said Thomas B. Jones, defendant herein, in the
sum of $ 1,100, with interest thereon at 10 per cent. per
annum since March 12, 1913, said indebtedness being evidenced
by a promissory note and secured by a chattel mortgage on a
certain stock of goods and certain fixtures owned by said
Engberg in what was known as the Mission Drug Store at
Spanish Fork, Utah County, Utah; said note and mortgage being
set out in full in Exhibit A to defendant's answer
herein. That said mortgage was duly recorded in the office of
the county recorder of Utah County, State of Utah, on October
9, 1913, in volume 92, p. 220, of Chattel Mortgages. That no
part of the principal of said note, or any interest thereon,
had been paid on said 2d day of January, 1914. That Engberg
was in default in his payment upon said note. That defendant
duly demanded of said Engberg the payment of said note, and
it was thereupon agreed between said Engberg and defendant
that it would be cheaper for said Engberg to confess judgment
for said debt and permit judgment to be entered and execution
to issue thereon, rather than to foreclose the chattel
mortgage which secured said debt. That on said 2d day of
January, 1914, said Engberg confessed judgment in the
District Court in and for Utah County, State of Utah, in
favor of defendant, for the sum then due on said debt which
was secured by said note and mortgage, a true copy of said
confession of judgment is attached to defendant's answer
herein as Exhibit A. That thereafter execution was regularly
issued upon said judgment, that a levy of execution was made
by the sheriff of Utah County upon the very goods and
fixtures owned by said Engberg in what was known as the
Mission Drug Store at Spanish Fork, Utah, being
the same goods and fixtures as were covered by the lien of
said chattel mortgage. That the sale of said merchandise and
fixtures under said execution was noticed regularly for
January 15, 1915, and the said merchandise and fixtures were
upon said day sold under said execution for the use and
benefit of defendant, and that defendant received, as the
proceeds of said sale, the sum of $ 500. That said confession
of judgment and the judgment thereon has never been vacated
or discharged, and that the said A. F. Engberg, defendant
herein, did not, at least five days before such sale, vacate
or discharge said judgment. That on said 15th day of January,
1914, and within four months before the filing of the
petition in bankruptcy, above set forth, the said A. F.
Engberg was insolvent, and that said defendant then had
reasonable cause of belief that the enforcement of said
judgment, by said sale, would enable the defendant to receive
a greater percentage of his debt than any other creditors of
said A. F. Engberg of the said class. That the assets of said
estate are insufficient to pay creditors in full. That
previous to the commencement of this action plaintiff duly
demanded of the defendant the payment of said sum of $ 500,
which the defendant has refused and neglected to do. That at
the trial of said cause, after the introduction of evidence
on the part of plaintiff, and after plaintiff had rested its
case, it was stipulated by and between the plaintiff and the
defendant herein that if the court decided that the
confession of judgment, as filed by said Engberg, and as set
out in the pleadings herein, was a waiver of the security
under the chattel mortgage described above in the fourth
finding of fact and set out in full in Exhibit A to
defendant's answer herein, then in that event judgment in
this cause should be entered for the plaintiff, but if the
court decided contrarywise, then judgment should be entered
for the defendant."
As
conclusions of law the court found as follows:
"That
said confession of judgment hereinbefore particularly
described did not constitute a waiver of the lien under the
chattel mortgage held by defendant as above described. That
defendant is entitled to judgment against the plaintiff of
dismissal of said cause, and defendant is
entitled to its costs herein incurred or expended."
The
confession of judgment, so far as material here-reads as
follows:
"I,
A. F. Engberg, of Spanish Fork, Utah County, State of Utah,
do hereby confess judgment herein in favor of Thomas B.
Jones, of Spanish Fork, Utah County, State of Utah, for the
sum of $ 1,100, lawful money of the United States of America,
and authorize judgment to be entered therefor against me with
interest thereon from and after July 1, 1913, and for all
costs of docketing, filing, and satisfying said judgment.
This confession of judgment is for a debt justly due and
owing to the said Thomas B. Jones, arising upon the following
facts, to wit: On March 12, 1913, I, the said A. F. Engberg,
borrowed the sum of $ 1,100 from Thomas B. Jones, and gave as
evidence of said indebtedness my promissory note secured by a
chattel mortgage, of which the following is a copy, and the
said mortgage also contained a copy of the promissory note
which I made, executed, and delivered to said Thomas B.
Jones, the same being as follows, to wit: [A copy of the
chattel mortgage and a copy of the note secured thereby are
set forth in full in the confession of judgment. The mortgage
is dated September 25, 1913, and the note March 12, 1913. The
mortgagee was given the power to sell the mortgaged property
upon default of payment at public auction]."
The
confession of judgment concludes as follows:
"Said
chattel mortgage aforesaid was duly executed and acknowledged
so as to entitle the same to be recorded and the same was
duly recorded in the office of the county recorder of Utah
County, State of Utah, on October 9, 1913, in volume 92, p.
220, of Chattel Mortgages. That the interest on said note has
been paid up to July 1, 1913, but not thereafter. That the
said Thomas B. Jones has demanded the interest paid which is
due, and the same has not been paid and the said Thomas B.
Jones thereafter and heretofore had declared that because the
said interest was not paid as agreed the whole sum, both
principal and interest, should be paid. It is understood by
said A. F. Engberg that this confession of judgment does not
cause said Thomas B. Jones to waive any rights
that he may have under his said mortgage and mortgages
aforesaid, but said Thomas B. Jones shall retain all of the
said rights he would have had if he had brought a proceeding
in foreclosure or other action authorized in said chattel
mortgage aforesaid. A. F. Engberg further says that no part
of said $ 1,100, or the interest thereon from and after July
1, 1913, has been paid, and the same is now due and
payable."
The
confession was duly verified. The District Court entered
judgment dismissing the complaint, and the plaintiff appeals.
Counsel
for appellant, in their brief, state the propositions to be
decided thus:
"Did
the defendant and respondent, by taking the confession of
judgment of Engberg,
waive the lien of the mortgage? Did the defendant, by the
levy of an execution upon and sale of the property described
in the chattel mortgage, waive the lien of the chattel
mortgage? We submit that both questions should be answered in
the affirmative."
We have
a statute (Comp. Laws 1907, Section 3498) which provides:
"There can be but one action for the recovery of any
debt or the enforcement of any right secured by mortgage upon
real estate or personal property, which action must be in
accordance with the provisions of this chapter."
It is
contended, therefore, that, inasmuch as the confession of
judgment was made within four months of the time that the
petition in bankruptcy was filed, upon which Engberg was
adjudged a bankrupt, Jones not only did not gain anything
from the confession, but lost his rights under the chattel
mortgage by selling the property as appears in the foregoing
statement. California has a statute from which ours was
taken, and it has been held by the Supreme Court of
California in the following cases that only one action is
permitted upon any debt secured by mortgage under that
statute: Merced Bank v. Casaccia, 103 Cal
641, 37 P. 648; Commercial Bank v.
Kershner, 120 Cal. 495, 52 P. 848. Other California
cases are referred to in those cases. The Territorial Supreme
Court of Utah, in Bacon v. Raybould, 4 Utah 357, 10 P. 481, 11 P. 510, followed the
California rule. This court has also...
