Western Seed Marketing Co. v. Pfost

• Decision Date: 24 December 1927
• Docket Number: 4802
• Citation: 45 Idaho 340,262 P. 514
• Parties: WESTERN SEED MARKETING COMPANY, a Corporation, Appellant, v. EMMITT PFOST, Sheriff of Ada County, Idaho, Respondent
• Court: Idaho Supreme Court

262 P. 514

45 Idaho 340

WESTERN SEED MARKETING COMPANY, a Corporation, Appellant, v. EMMITT PFOST, Sheriff of Ada County, Idaho, Respondent

No. 4802

Supreme Court of Idaho

December 24, 1927

CHATTEL MORTGAGES-SALE OF CHATTELS-CONSENT OF MORTGAGEE-WAIVER OF LIEN - CLAIM AND DELIVERY - CONTRACT OF SALE - TEST AS TO WHETHER CONTRACT IS EXECUTED OR EXECUTORY-CASH SALE.

1. Where there was recorded mortgage covering growing crop, it was incumbent on purchaser of crop, in action in claim and delivery, to prove that consent to sale was actually given by mortgagee and that it was unconditional.

2. General rule is that, where mortgagee consents to sale of mortgaged chattels by mortgagor, he waives lien of his mortgage and purchaser takes title free of mortgage lien.

3. Sale of mortgaged chattels will not be valid as against mortgagee when consent of mortgagee is qualified and on condition which purchaser has promised but failed to perform.

4. Where mortgagee of growing crop did not consent to sale except on payment of mortgage, such mortgagee on foreclosure was entitled to take possession of crop and sell it through agency of sheriff so that claim and delivery action could not be maintained against sheriff by purchaser.

5. Chattel mortgagee may waive lien or be estopped to enforce it by conduct inconsistent with its existence.

6. In action for claim and delivery, it is incumbent on plaintiff to establish its right of possession on strength of its own title and not weakness of defendant's title.

7. Title or right to possession is essential prerequisite to action in "claim and delivery."

8. Test as to whether contract of sale is executed or executory may be applied by considering at whose risk subject matter of contract remains prior to actual delivery to buyer.

9. Contract for sale of crop held executory so that buyer having no right to possession, could not maintain action in claim and delivery, where such buyer was not entitled to crop till payment was made, and he made no payment in full nor tender of such payment.

10. Where, under contract of sale, buyer is not entitled to subject matter till payment is made, law presumes "cash sale," which is one where payment and delivery are to be concurrent.

APPEAL from the District Court of the Third Judicial District, for Ada County. Hon. Clinton H. Hartson, Judge.

Action in claim and delivery. Judgment for defendant. Affirmed.

Judgment affirmed. Costs to respondent.

S. L Tipton and P. E. Cavaney, for Appellant.

The mortgagee waives his lien where he consents to the sale of the mortgaged property. (Knollin v. Jones, 7 Idaho 466, 63 P. 638; Farmers' State Bank of Star v. Gray, 36 Idaho 49, 210 P. 1006; Blackfoot City Bank v. Clements, 39 Idaho 194, 226 P. 1079; Bellevue State Bank v. Hailey National Bank, 37 Idaho 121, 215 P. 126; Adamson v. Moyes, 32 Idaho 469, 184 P. 849; Carr v. Brawley, 34 Okla. 500, 125 P. 1131, 43 L. R. A., N. S., 302, and note.)

A sheriff can be sued and is liable in an action in claim and delivery. (Blackfoot City Bank v. Clements, supra; Knollin v. Jones, supra; Dobbins v. Mounce, 5 Idaho 325, 48 P. 1070; Saxton v. Breshears, 21 Idaho 333, 121 P. 567; Hatch v. Standard Oil Co., 100 U.S. 124, 25 L.Ed. 554.)

Wm. Healy, for Respondent.

Plaintiff in replevin must recover on the strength of his own title, not on the weakness of the title of the defendant. ( Mountain Home Sheep Co. v. Faraday, 36 Idaho 633, 212 P. 970.)

Conditional assent by mortgagee to sale of mortgaged chattels does not constitute waiver of mortgage lien, unless condition is complied with, where purchaser has knowledge of and acquiesces in the condition. (Oswald v. Hayes, 42 Iowa 104; Murphy v. Currie, 21 Wash. 232, 57 P. 795; Bailey v. Costello, 94 Wis. 87, 68 N.W. 663; Trabue v. Wade (Tex. Civ. App.), 95 S.W. 616; Monison v. Renaker (Ky.), 60 S.W. 924; Dodson v. Dedman, 61 Mo.App. 209.)

Purchaser of personal property cannot, where contract is still executory, maintain replevin for it. (Bertelson v. Van Deusen, 37 Idaho 199, 217 P. 983.)

Sheriff must execute process regular and fair on its face, and is protected in so doing. (C. S., sec. 3607; Peterson v. Merritt, 25 Idaho 324, 137 P. 526.)

Officer is protected in the execution of specific process, as distinguished from general process, if he literally obeys the injunctions of the process. (Conner v. Long, 104 U.S. 228, 26 L.Ed. 723.)

ADAIR, Commissioner. Babcock, Featherstone, CC., Wm. E. Lee, C. J., Taylor and T. Bailey Lee, JJ., concurring.

OPINION

ADAIR, Commissioner.--

This action was instituted against Emmitt Pfost, as sheriff of Ada county, to recover possession of certain alfalfa seed, levied upon by him in a summary chattel mortgage foreclosure proceeding commenced by the Grandview State Bank against one J. L. Thams. The case was tried without a jury, and the appeal is from a judgment in favor of Pfost.

There are eleven assignments of error, but it will be necessary to consider only two questions in the determination of this cause. The appellant, in writing, contracted to purchase from Thams certain Grimm alfalfa seed which was then growing on lands farmed by Thams, and which seed was to be cleaned before delivery to, and payment by, the purchaser. Prior to the making of this contract, Thams executed a chattel or crop mortgage upon this seed crop to the bank above mentioned, and a representative of appellant had talked with an officer of the bank about the mortgage and the contemplated purchase of the crop. Exactly what agreement was made between these parties is not satisfactorily disclosed by the testimony, but the inference therefrom is that the bank consented to the sale, upon the condition that the proceeds should be applied on the mortgage indebtedness of Thams to it. The crop was harvested, and later transported to Boise and cleaned according to contract. The appellant then attempted to settle therefor by issuing its check payable jointly to Thams and the bank, but deducting from the total amount due on the purchase price of the crop $ 600 it had previously advanced to Thams and to the bank. Thams refused to accept the check unless made payable to him individually, and the mortgagee bank refused to accept it unless made for the full value of the crop, without any deductions. No settlement being made, the mortgagee finally commenced foreclosure proceedings. On the date fixed for the sale, appellant made demand on the sheriff for possession of the seed, and upon the refusal of that officer to comply with such demand this action was begun.

The court found that the mortgagee bank consented to the contract of sale, and this finding is in accord with the evidence. The court further found that "there is no sufficient evidence upon which to determine whether the said bank consented to the sale, subject to its mortgage lien, or whether the mortgage lien was waived." The only evidence adduced in that regard was given by B. F. Sheehan, secretary of appellant corporation, and is as follows:

"Q. How did you know the State Bank had a mortgage?

"A. By the statement of Mr. Mullinix.

"Q. Who is Mr. Mullinix?

"A. Cashier of the Grandview State Bank.

"Q. What conversation did you have with him, if any, in relation to this mortgage? . . . .

"A. I visited Mr. Mullinix at the bank in Grandview upon two different occasions, each time having a through discussion with him relative to the status of Mr. Thams and the mortgage which was held by the bank.

"Q. On this seed?

"A. On this seed. And the question in our minds at the time was that Mr. Thams was very slow in the harvesting of his crop, and was already involved I think to the extent of $ 100 or $ 1200 ($ 120), and we saw difficulty in being able to finance him for more money for the harvesting and threshing expenses. We then agreed to advance as per contract such moneys as we were requested to assist in the financing of Mr. Thams in getting his stock (crop) to the market. . . .

"Q. What further conversation did you have with Mr. Mullinix at that time regarding this stock (crop)? . . . .

"A. The only conversation that I recall is that we were very well satisfied with the deal, and were anxious to and we went in there to assist in the financing of the crop the same as we did and relieved the bank of financing Mr. Thams in the matter."

The first payment of $ 200 by the appellant on the purchase price of the seed was made to and received by the bank, and credited on the Thams indebtedness to that institution. The purchaser, when the amount of the purchase price was ascertained, insisted upon making its check payable jointly to Thams and to the mortgagee bank. Both of these circumstances indicate that it was understood that the consent to the sale was conditioned upon the bank's claim being protected. Appellant, in recognizing such claim, gave its own construction or understanding of the agreement for the sale, and the acts of the mortgagee in reference thereto. While the court is correct in its finding that there is no direct evidence as to whether the consent was conditional or otherwise, these acts of the purchaser are peculiarly significant.

In the face of the recorded mortgage, it was incumbent on the purchaser to prove that the consent to the sale was actually given, and that it was an unconditional one. This court has held that where a mortgagee consents to a sale of the mortgaged chattels by the mortgagor, he waives the lien of his mortgage, and the purchaser takes title free of the mortgage lien. (Knollin v. Jones, 7 Idaho 466, 63 P. 638; Bellevue State Bank v. Hailey National Bank, 37 Idaho 121, 215 P. 126.) This is a general rule universally upheld, and necessary for the protection of purchasers of mortgaged chattels who have relied upon...