Watson v. First Nat. Bank

• Decision Date: 09 October 1914
• Docket Number: 11805.
• Citation: 82 Wash. 65,143 P. 451
• Parties: WATSON v. FIRST NAT. BANK OF CLARKSTON.
• Court: Washington Supreme Court

143 P. 451

82 Wash. 65

WATSON v. FIRST NAT. BANK OF CLARKSTON.

No. 11805.

Supreme Court of Washington

October 9, 1914

Department 1. Appeal from Superior Court, Asotin County; Chester F Miller, Judge.

Action by Henry P. Watson against the First National Bank of Clarkston. From a judgment for plaintiff, defendant appeals. Affirmed.

W. A Hall, of Clarkston, and Chas. L. McDonald, of Lewiston Idaho, for appellant.

Ben F. Tweedy, of Lewiston, Idaho, and Elmer E. Halsey, of Clarkston, for respondent.

MAIN J.

The purpose of this action was to recover the value of personal property alleged to have been wrongfully taken from the plaintiff and sold upon execution. The cause was tried to the court without a jury. Judgment was entered for the plaintiff as prayed for in the complaint. The defendant appeals.

The facts are not in dispute. They are as follows: On the 9th day of February, 1910, the members of a partnership doing business in the firm name and style of the Clarkston Box & Manufacturing Company executed and delivered to one Elizabeth Thompson their promissory note for $2,000, and to secure the payment of the same executed on the same day a chattel mortgage covering certain personal property. This mortgage did not contain an affidavit of good faith, as required by the laws of this state, and was never recorded in the auditor's office, as required by the statute in order to be effective as notice. The note and mortgage by assignment became the property of the plaintiff on or about April 10, 1911. Thereafter, with the consent of the mortgagor, the plaintiff took possession of the mortgaged property. Subsequent to the execution and delivery of the mortgage to Elizabeth Thompson, and prior to the date when the plaintiff took possession of the property under the mortgage, the First National Bank of Clarkston loaned to the partnership the sum of $2,500, taking a promissory note therefor. This note not being paid when due, suit was begun thereon, and judgment rendered in favor of the bank and against the copartnership on April 8, 1912. Under this judgment execution was issued and the property sold. From these facts it appears that the bank became a general creditor prior to the time when possession of the property was taken by the plaintiff under the mortgage, and that subsequent to the time when the possession was taken the bank secured a judgment against the copartnership and levied upon and sold the property covered by the mortgage.

There is but one question in this case, which, stated in the language of the appellant in its brief, is this:

'Will the taking possession of chattel mortgaged property by a mortgagee under and by virtue of a chattel mortgage, which has never been filed, indexed, or recorded, give such a mortgagee a prior lien on the property superior to a general creditor, who gave credit to the mortgagor subsequent to the execution of such mortgage, and prior to the mortgagee taking possession, without notice, express or implied, of said mortgage, or of the indebtedness sought to be secured thereby, and which creditor, having reduced his claim to judgment, seized the property on execution subsequent to the mortgagee taking possession, but prior to any judgment or decree foreclosing the mortgage?'

A chattel mortgage, not recorded as required by statute (Rem. & Bal. Code, § 3660), while void as to creditors who have acquired some form of lien upon the mortgaged property, is nevertheless valid as between the mortgagor and the mortgagee. In Heal v. Evans Creek Coal & Coke Co., 71 Wash. 225, 128 P. 211, it was said:

'Whether properly recorded or not, the mortgage was valid as between the mortgagor and mortgagee, and it is only creditors who have acquired some form of lien upon the mortgaged property that can question the right of the mortgagee to foreclose against such mortgaged property.'

Where the mortgage is executed and delivered, and prior to the time of its being recorded persons...