*1 238 justified. Respondent’s
trate was above violation n admissions, only section is not abundantly shown her own but is ap- proven by all the and circumstances facts pearing upon the trial this case. probable As there evidence of want of cause, nonsuit, granted the court motion for should have or have The should directed verdict for defendant. rule Jur., 18, page 753, state 16 Cal. as follows: “* * * probable Where there is no evidence of want cause, of the court can cause, where, upon undisputed facts and the view disputed plaintiff, facts most favorable to the say probable as a matter there was of law any question jury, the court to the should not submit grant but should a nonsuit or for the defen- direct verdict dant.” Co., Telephone Telegraph also & Davis v. 127 See Pacific 764; Rawles, Cal. 57 P. Ball v. 93 Cal. 28 P. Rep. 174; App. 796, Brod, Am. 27 P. 413. St. Jirku v. 42 Cal. assigned by appellant Errors are other than ones discussed, herein fails to show that but in view of the fact that evidence probable acted without want cause, assignment. chiefly we have confined our discussion to this one denying appellant’s The action of the district court reversed, motion for nonsuit was error cause remanded trial court with instructions to the the motion to sustain and to dismiss the action. appellant. Costs JJ.,
Holden, C.J., Ailshie, Budge, Givens, concur. (No. 12, 1943.) 7123. October COMPANY, Appel corporation, CREDIT CONSUMERS County, lant, Idaho, Respondent. MANIFOLD, F. of Minidoka v. W. Sheriff (2d) Pac. [142 150.] *2 appellant. J. H. Barnes *3 respondent. A. for H. Baker BUDGE, Appellant in the Pro- instituted action J. bate County respondent, Court of Minidoka from to recover sheriff county, damages of that alleged to sus- have been tained upon reason of a sale on execution an automobile appellant which mortgage. Respon- claimed to hold a prevailed dent in the Probate Court and also in the District Court where the appeal. cause was and tried on submitted appeal This judgment from the of the District Court for County Minidoka denying and from an order a new trial. Briefly 28, stated the record discloses that on October 1941, Taylor judgment against Food Stores recovered Hew- 23, September 1941, appellant itt Jex to whom on had sold upon, payment the automobile levied and to secure thereof appellant Hewitt Jex executed and delivered to a note and on said automobile. On October Taylor the writ of execution on the Food Store placed sheriff, in the hands of who levied the taking possession execution other November into his the automobile and personal property, and noticed the same sale on 6, 1941, respondent 1941. On November made appears Taylor, return his wherein it that Florence owner Taylor Store, by agent, of chased the Wayne Taylor, Food pur- her 1, 1941, appel- automobile for On November $40. respondent, sheriff, lant served on designated as what is as demanding a third possession claim of said automo- bile, among wherein things alleged other grounds it is appellant’s right title and of said automo- bile, September 23, 1941, that on Jex Hewitt executed and delivered to his certain chattel in the principal sum of payment promis- to secure of his $234.36 sory amount, same date note the same being payable monthly note 23rd been installments of on the $19.53 day subsequent month; only each $19.53 paid unpaid and there is now and due thereon the *4 principal together sum of per with interest $214.83 at 8 23, 1941, plus cent from attorney’s October $10; an fee of mortgage provided that note and said mortgagee that if the compelled legal to protect take action to its lien on said property, mortgagor pay will a therefor; reasonable fee mortgage “that said has been filed for record in the office Secretary Idaho;” (Italics State ours.) that of of mortgagor keep mortgaged property shall free from attachment, execution, and all liens; other that a conditions, breach of said mortgagee may declare the mortgage immediately amount due under
whole take foreclosure; appel- property that the covenants elected reason of the breach of lant had mortgage amount due in the to declare the entire contained and proceed to to foreclose same. It was levied will be that the execution observed possession the third prior the service taken of the automobile to subsequent claim, party but the sale was It third thereto. will further noticed that in the be mortgage filed for claim it is recited “that said record Moreover,, never filed in has been Secretary in Idaho.” the office of the it of State of mortgage appears was further that the chattel County county. Appel- any or other Twin Falls by offering F prove, lant to which to Exhibit undertook in evidence objection interposed, and correct that a true copy department mortgage of the chattel was filed with appearing enforcement in But it law office Boise. its. on the it did not face of that bear notary public true and the certificate of a correct it was a S.L., copy required by 48-402-j, p. as appellant withdrew his offer before the court ruled. There- fore, there was no that the evidence introduced at the trial provisions section 48-402-j, supra, complied of sec. with. were Said provides: operate conveyance to mortgage, intended or “No chattel any registered under the law vehicle on as a subsequent of this the effective date to executed this state registration was effected act, irrespective whether such mortgage or of such subsequent execution prior lien, to the or subsequent purchasers against or creditors as is valid mortgagee or hold- notice until the without encumbrancer or mortgage, operate conveyance as a intended er or his successor at its such department assignee, has filed or with copy mortgage, Idaho, or Boise, a of said office mortgage, operate with an as a conveyance intended stating notary public that the same of a certificate attached accompanied by original, copy a and correct a true to the vehicle described of title properly endorsed certificate instrument, and if a certificate mortgage, or other in said for such motor previously issued been has not title of vehicle conveyance state, mortgage, intended said in this accompanied by prop- be operate shall as to erly vided title, pro- a certificate of application for executed chapter. *5 mortgagee the or holder of such other “When the conveyance or chattel operate mortgage, intended to a successor his assignee, department copy has with the a the filed of mortgage, conveyance operate or to as a intended provided, together fifty as herein fee with a of pay thereof, to filing duty cents for the it of shall be the the department same, endorsing to forthwith file the thereon Boise, the date and hour received at its office in Idaho. department genuineness When the is satisfied as to the regularity chapter of the documents submitted as in this provided, it shall issue a new of certificate title as in this chapter provided, which shall contain the name of the vehicle, owner of the the and address of each holder name encumbrance, lien of a encumbrances or and a statement all of liens or department, which have been filed the with together with the date of each lien or encumbrance and date and hour department, received and such filing of a lien or upon encumbrance and the notation thereof the certificate of title shall constitute constructive notice of such lien encumbrance and its contents to creditors subsequent purchasers encumbrancers, and all mortgages, liens or department encumbrances so filed with upon and so noted priority certificate of title shall take according to the order of time in which the same are noted department certificate of title of law enforce- (Italics ours.) ment.” having complied provisions Appellant not with the 48-402-j, supra, of tence Appellant of constructive notice the exis given respondent. of to its chattel alleges, complaint in his inter alia: “that on the day Rupert, September, of 23rd Idaho, note, made of one Hewitt Jex plaintiff promissory to executed and delivered his which, A, copy a of marked Exhibit is attached to and complaint; payment part a of that to secure note, executed, acknowledged Jex said Hewitt said plaintiff copy which, mortgage, a chattel delivered to B, part marked Exhibit is attached to and made a of this copy complaint; was ment that a said chattel certified Department Law office of filed Enforce day on or the State Idaho first before (Italics ours.) October, 1941.” upon appellant prove burden rested The preponderance alleged. evidence facts above This Upon he failed do. it trial was established without nor her contradiction that neither the son who tence of the creditor *6 knowledge represented her of the exis- had actual mortgage at time appellant’s of note and chattel the brief, very Appellant argues ably, levy. in his case, therefore, upon question notice, of the “whole it turns the being con- of the that unless the contention defendant shown, mortgage be lien structive notice of the can the acquired by superior levy is the under writ of execution sheriff’s mortgage. The conten- to the lien of an unrecorded plaintiff of claim constituted tion is that third the doing away necessity mortgage, actual of the with the notice that, regardless notice; either of constructive structive or actual and con- notice, property purchased at where by judgment creditor, the amount execution sale the and judgment, the is not a bona fide of the bid credited on he purchaser, property subject any to liens which takes the purchase, at it existed the time of such from follows which mortgage, that, subject appellant’s if made the sale was to stated, did such sale constituted a conversion.” Otherwise judgment acquire the execution, a lien virtue of the creditor superior appellant and if to the lien so was it the had virtue his of which unrecorded Appel- creditor had neither constructive nor actual notice? Taylor, judgment lant also that since Florence cred- asserts itor, purchased sale, the automobile at the sheriff’s judgment, the amount her not credited bid on the she was purchaser subject a appellant’s fide but to bona took the automobile mortgage. lien virtue his unrecorded upheld contention cannot be opinion this In our Appellant to did not seek facts of case. under recover the the damages property, election for the conver specific but damages, it affirmed By for to sue sion thereof. its purchaser it pass taking, permitted title to to Having question of title. longer no concerned with is ratified the of no concern damages for it is taking to and elected sue property was ever to whether purchaser, purchaser a bona fide sold, was or whether paid otherwise, any for consideration was or whether unlawful, taking respondent’s lia property. If was by the bility decreased nor sale neither be increased would paid for auto property, or whether the amount judgment Appellant’s or not. on the was credit mobile action, any, complete if when re accrued cause 48-402-j, specifically property. supra, spondent took the Sec.
245
against
valid
provides
is not
as
that an unrecorded
purchasers without notice. No cases have been
creditors and
priority-
holding
mortgage takes
unrecorded
cited
over the lien of an
that an
attaching
In 23
creditor.
C.J.
rule is stated:
requiring mortgages
“Under
and conditional
statutes
against
to
be valid
fide creditors
sales
be recorded to
bona
value,
purchasers
super-
the lien of an
and
ior
execution
prior
that of a
or sale of which
unrecorded
judgment
notice, although
creditor
the instru-
* *
ment was recorded
of sale
before
execution
See
300;
Wise,
v.
115
also C.J.S.
Cal.
the 2, instant is announced No. Alsbury Alsbury, (Tex.) v. S.W. follows: “Where to issue and creditor caused execution judgment debtor, be levied automobile levy superior lien his attached at time of and was to lien *7 unregistered chattel on automobile of which he time, notwithstanding notice at such notice at time of 82 Wash. Corp., Bank, execution sale.” See also Watson v. First National 65, 451; Hope 143 Development P. Teater v. Good 459, 130 (2d) (2d) 55 C.A. P. 812. As has absolutely been heretofore stated there is no evi- appellant’s dence in the record that was ever properly 48-402-j, supra, filed for under record or that judgment the knowledge creditor had actual constructive or appellant’s of the existence at the time levy. of the Appellant complains by giving the court question upon certain instructions of constructive and actual notice for the reason that said instructions were in conflict, complains and further that the court erred in instructing tory tion jury with reference to matter of statu ques rate of interest for reason that there was no statutory case, interest involved in the and that said jury prejudicial instructions tended to confuse the were and appellant. carefully We have all examined of the instruc given by together tions and the court when construed and whole, particularly light in as asked of instructions by given appellant court, for we find no prejudicial reversal. in error the instructions that would warrant a 246 sought predicated the action is to be Error denying appellant’s to vacate motion of the court In judgment, grant trial. view a new verdict and the to hold that the case, are constrained disposition we have made we appellant’s that merit in contention there is no showing respect. is no sufficient erred in this There court change The granting the result. a new trial would jurisdiction a new general that a motion for rule in this is appears granted that a different not unless it trial should be Corp. (Live v. will follow a retrial. Stock Credit result 874; Bag 190, v. Corbett, (2d) 22 Friedman Co. 53 Ida. P. 607, 43; Co., (2d) Younie v. Ida. 68 P. & 57 F. E. Baldwin Bardsley, 767, 419; 37 Sheek, 44 P. McAllister v. Ida. 260 rehearing), (On 220, 852; Montgomery Gary v. Ida. 26 Ida. 215 P. 165, 585, 646; Jensen, 14 93 P. Ida. 144 P. Hall v. 962; 466, 638.) Jensen, P. v. 7 Ida. 63 Knollin Costs judgment affirmed and it is so ordered. The
respondent. J., Holden, C.J., Dunlap, concur. concurring. rule in AILSHIE, J., the settled is—It property purchases at state, execution sale judgment who that a creditor pur not a bona fide on his own (Mountain v. Swart Lumber Co. Home chaser for value. wout, Purring 271; Rexburg L. v. P. Co. 30 Ida. party was (2d) 511.) who P. The ton, 62 Ida. is not these cases the rule established
bound to this case. demand, person” mortgagee made a “third Here property levied possession 8-202,1.C.A., of the for under sec. upon, pursue its claim to further but failed thereof. sue for the value property and elected to question as to position to raise therefore not It is or was purchaser at execution sale not whether or *8 purchaser for value. fide not bona grounds. foregoing solely on the My is based concurrence Budge, concurring specially. concur with GIVENS, J., —I my concurrence Ailshie, J., except I not limit do J., and with Ailshie, J. as does