Vollmer v. Estate of Reid

• Decision Date: 16 June 1904
• Citation: 77 P. 325,10 Idaho 196
• Parties: VOLLMER v. ESTATE OF JAMES W. REID
• Court: Idaho Supreme Court

77 P. 325

10 Idaho 196

VOLLMER v. ESTATE OF JAMES W. REID

Supreme Court of Idaho

June 16, 1904

CHATTEL MORTGAGE-RENEWAL.

1. Where it is shown that a chattel mortgage is given as security for a debt then existing, evidenced by a promissory note of even date therewith, and thereafter a new note and chattel mortgage are given to cover the same debt, even though a different rate of interest is provided for in the new note, and an additional sum for attorney's fee provided for therein, held, not to be a new contract where it is stated in the mortgage that the new obligation is given for the purpose of renewal of the old.

(Syllabus by the court.)

APPEAL from the District Court of Nez Perce County. Honorable Edgar C. Steele, Judge.

From a judgment for plaintiff, defendant Morris appeals. Affirmed. Costs awarded to respondent.

Judgment affirmed with costs to respondent.

Daniel Needham, for Appellant.

We contend that after the legislature of this state enacted the law requiring the joint concurrence of both husband and wife in order to create a valid chattel mortgage on exempt personal property, the said mortgagor could not create any valid liens on the property in controversy, nor renew or extend any lien that was placed thereon prior to the enactment of said law--Session Laws of the state of Idaho of 1899, page 292--to the prejudice of the interest of subsequent intervening third parties without the concurrence of his wife. In support of the foregoing contention we cite the following: Kindall v. Lincoln Hdw. etc. Co. et al., 8 Idaho 664, 70 P. 1056; Willows v Rosenstein, 5 Idaho 305, 48 P. 1067; Watt v Wright, 66 Cal. 202, 5 P. 91; Wood v Goodfellow, 43 Cal. 185. When third persons have subsequently acquired interests in the mortgaged property, they may invoke the aid of the statutes as against the first mortgagee, even though the mortgagor, as between himself and the mortgagee, may have waived its protection; and we see no difference in principle between a suspension of the running of the statutes resulting from an express waiver and one caused by the voluntary act of the mortgagor in the absenting himself from the state. (California Bank et al. v. Brooks, 126 Cal. 198, 59 P. 302; Newhall v. Hatch et al. (Cal.), 64 P. 250.) We further contend that an acknowledgment in writing must clearly relate to the particular debt, must identify it, and must amount to a promise to pay it, or it will be insufficient. (Gragg v. Barnes, 32 Kan. 301, 4 P. 276; Haythorn v. Cooper, 65 Kan. 338, 69 P. 333; Shepherd v. Thompson, 122 U.S. 231, 7 S.Ct. 1229, 30 L.Ed. 1156.) Can it be said that the note of June 28, 1900, on its face clearly relates to the note of March 21, 1896, as the particular debt, or identify it in any way? We think not; and it is apparent to us that the transaction of 1900 must stand as a new contract, which under the laws of this state is void. (Siemans & Halske Electric Co. of America v. Ten Broek, 97 Mo.App. 173, 70 S.W. 1092.)

George W. Tannahill, for Respondent.

Counsel contends that the court erred in entering its finding No. 5, for the reason that there was no reference made in the note dated June 28, 1900, to the note dated March 21, 1896, and that the court erred in admitting oral evidence in explanation of the execution of the note bearing date June 28, 1900, connecting the same with the note bearing date March 21, 1896, and proving by oral evidence that the note dated June 21, 1900, was a renewal of the note dated March 21, 1896. This court has passed upon this question and held that the identity of the two notes may be shown by parol testimony. (Kelly et al. v. Leachman, 3 Idaho 629, 33 P. 44; Kincaid v. Archibald, 73 N.Y. 189; Fowler v. Elwood, 66 Ill. 446; Wilcox et al. v. Williams, 5 Nev. 206; Birrell v. Schie et al., 9 Cal. 104-108; Spring v. Hill & Carr, 6 Cal. 18; Herman on Chattel Mortgages, 129.) Section 3351, Revised Statutes of Idaho provides how a mortgage may be renewed or extended. We contend the acknowledgment of the chattel mortgage dated June 28, 1900, meets the requirements of this statute, and if it did not, this court has frequently held that the extension of time simply affects the remedy and not the obligation. We call special attention to the cases heretofore decided by the court, to wit: Moulton v. Williams, 6 Idaho 424, 55 P. 1019; Law v. Spence, 5 Idaho 244, 48 P. 282-284; Burk Land etc. Co. v. Wells-Fargo Co., 7 Idaho 42, 60 P. 92.

STOCKSLAGER, J. Sullivan, C. J., concurs in the conclusion. AILSHIE, J., Concurring.

OPINION

The facts are stated in the opinion.

STOCKSLAGER, J.--

The plaintiff commenced his action in the district court of Nez Perce county, alleging that on the twenty-first day of March 1896, Jas. W. Reid executed and delivered to John P. Vollmer his promissory note for $ 331, due in ninety days after date, with interest at the rate of one and one-half per cent per annum from date, which note provided for payment in event of suit or action to enforce the execution of the same, the sum of $ 30 attorneys' fees.

The fourth allegation is that to secure the payment of said note Reid mortgaged to Vollmer on the same date the following chattels: Federal Reporter, volumes 1 to 68, and four digests; Pacific Reporter, volumes 1 to 42, and one digest; American Annual Digest, 10 volumes, 1887 to 1895, inclusive; New York Reports, Court of Appeals, volumes 1 to 147, and four digests by Brightly.

That plaintiff annexes hereto as a part hereof a copy of said mortgage and hereby incorporates the same herein the same as if set forth at length.

The sixth allegation says: "That subsequent to the execution and delivery of said promissory note and of said mortgage, on, to wit, the twenty-eighth day of June, 1900, the said Jas. W. Reid renewed the said note and mortgage and on the said twenty-eighth day of June, 1900, the said Jas. W. Reid, for the purpose of renewing the said note and mortgage as aforesaid, executed and delivered to John J. Vollmer his promissory note for $ 334 of date January 27, 1899, due one year after date at the rate of twelve per cent per annum from date, which note provided for the payment of $ 50 attorneys' fees in event of suits, etc."

The seventh allegation is: "That for the further purpose of renewing said promissory note and mortgage as above described, the said Jas. W. Reid, as mortgagor, on the twenty-eighth day of June, 1900, executed and delivered to John P. Vollmer, as mortgagee, his certain instrument in writing, under seal, known as a chattel mortgage, a copy of which is hereto annexed, marked exhibit 'A' and made a part of this complaint as fully as if here set out, which said chattel mortgage was made in good faith for the purpose aforesaid, without intent to defraud creditors and purchasers, and was verified, acknowledged and filed pursuant to statutes in such case made and provided, and was duly filed for record on the thirtieth day of June, 1900."

The eighth allegation is "that the property mentioned and described in said chattel mortgage and the schedule annexed consisted of the following law books constituting a part of his library, to wit:" (Here follows a description of the same books described in the mortgage of March 21, 1896, and an allegation that this mortgage was a renewal of said first mortgage.)

The ninth allegation is that the last described note and mortgage were made, executed and delivered for the purpose of renewing the said note and mortgage, dated March 21, 1896, together with the accrued interest thereon, which said promissory note last above described is the identical note first above described, with the interest included therein, and is a renewal thereof.

The tenth allegation is that default has been made in the said chattel mortgage and the said notes in this: that the said notes have long since matured and remain wholly and entirely unpaid.

The eleventh allegation is that prior to the institution of this proceeding, plaintiff presented to the administrator of the estate of Jas. W. Reid his claim based upon said note, and at the time of presenting the same based his claim upon a copy of the note and mortgage referred to, and that the same was duly allowed as a secured claim against said estate by the administrator thereof, which allowance was approved by the probate court of Nez Perce county.

The twelfth sets out that there is due on said note as renewed and secured by said mortgage the sum of $ 504, with interest on $ 344 thereof at twelve per cent per annum from February 10, 1903.

The thirteenth alleges that the Lewiston National Bank, a corporation, and J. B. Morris, have, or claim to have, some interest in the property herein described and described in the hereto annexed exhibit as mortgagees, encumbrancers or purchasers, the exact nature of which is unknown to plaintiff, and which interest is subsequent, subject, prior and junior to plaintiff's said mortgage, and said corporation and said Morris are made parties hereto by reason of such adverse interest.

The prayer is: 1. That plaintiff's mortgage dated March 21, 1896, and promissory note of the same date for the sum of $ 331 be revived, and that said promissory note and chattel mortgage as renewed and revived be foreclosed.

2. That the defendant and the estate of Jas. W. Reid, deceased, be foreclosed of all equity of redemption; that the mortgaged property be sold and the proceeds applied to the payment of the costs and expenses in this action and of counsel fees in the sum of $ 50, and the amount due on said note and mortgage with interest from February 10, 1903, at twelve per cent per annum; that the estate of Jas. W. Reid, deceased, be adjudged to pay any deficiency that may remain after applying all of said money as...