49 P. 729 | Idaho | 1897
Lead Opinion
On the 29th of October, 1894, the plaintiff executed and delivered to the Bank of Genesee and to the Gen-esee Mercantile Company a joint chattel mortgage to secure the sum of $474.38 on certain personal property; and on the 10th of November, 1894, plaintiff gave to Frank Brothers Company, a private corporation, a chattel mortgage to secure the sum of $260.50. The property described in and encumbered by the foregoing mortgages included all of the personal property of plaintiff exempt from execution under the laws of the state of Idaho. On the seventh day of November, 1894, the defendant commenced an action in the district court for Latah county against plaintiff for the recovery of the sum of $677, besides interest and costs, and did issue an attachment, and caused the same to be levied upon all of the property of plaintiff described in said wo mortgages aforesaid. In compliance with the provisions of section 3389 of the Revised Statutes of Idaho, the defendant, at the time of attaching said property, tendered
Many questions are raised in the briefs of counsel which, in our view of this ease, have little bearing in its decision. The only question involved, as we view it, is one of construction of the statute. Section 3389. of the Revised Statutes of Idaho, provides that "all mortgaged personal property may be attached at the suit of any creditor of the mortgagor; such creditor, however, must pay or tender to the mortgagee, the amount due
It will be seen that under the provisions of this section of the Revised Statutes there are two distinct and separate-methods open to the creditor of the mortgagor for the enforcement of his claim. He may elect either, as the exigencies of,' his case may dictate; but, having elected to pursue one-remedy, he cannot, at his own option and in disregard of the-defendant’s rights in the premises, cease to pursue such-remedy, and adopt the other. After having pursued the first, remedy provided in section 3389 up to the point of having; advertised the sale under the execution, having amassed nearly all the costs essential to the completion of his remedy so-adopted, to say that the creditor may arbitrarily abandon such proceedings, and resort to a foreclosure of the mortgages paid by the creditor as a prerequisite to his right to levy his attachment, simply because he could thereby increase the burdens of' the defendant or lessen his own, would, in our view, be the very antithesis of “administering the law in justice.” In Cochrane v. Rich, 142 Mass. 15, 6 N. E. 781, the court saysr “The right to make an attachment of mortgaged personal
Rehearing
ON REHEARING.
We have most 'carefully considered the petition for a rehearing in this case, and do not find any •cause or reason for granting a rehearing. The facts clearly, show that the appellant attached the personal property in •question, and, in order to obtain possession thereof, paid the mortgage debt that existed against said property. He did not purchase the promissory note secured by said mortgage, but paid it under the provisions of section 3389 of the Revised Statutes, and thus satisfied said mortgage lien. He could not thereafter foreclose said mortgage. The debt was paid; the mortgage lien satisfied. When he had thus paid the mortgage debt, the provisions of said section required the proper •officer, after the sale of such property, to “first pay to such •creditor the amount advanced by him to pay the mortgage," •etc. The petitioner having elected the proceeding that he would pursue, and pursued it to the extent of paying the mortgage debt, he cannot revive the mortgage lien and foreclose the mortgage. Rehearing denied.