64 Ark. 213 | Ark. | 1897
(after stating the facts.) The question to be determined in this ease is whether the appellants waived their mortgage lien by suing out an attachment against the mortgagor, and causing it to be levied upon the mortgaged property? It is a familiar principle of law that one is not, as a rule, allowed to avail himself of the advantages of inconsistent positions in a litigation concerning the same subject-matter. Dyckman v Sevatson, 39 Minn. 132, 39 N. W. Rep. 73.
The appellants in this case held the note of Harris, which was secured by a mortgage upon the mule in controversy. The note was past due, and appellants could have taken charge of the property, and sold it, under the power contained in the mortgage, but they elected, instead, to bring suit before a justice of the peace, and attach the property. Now, so long as the mortgage lien existed, the mortgagor, Harris, had no interest in the mule subject to attachment, for mortgaged personal property is not subject to execution or attachment for a debt to the mortgagor. Jennings v. McIlroy, 42 Ark. 236. But appellants had the right to waive their mortgage lien, and attach the property. The levy of the attachment amounted to an assertion by appellants that the property was subject to seizure and sale under the attachment. But, as this could not be true if the lien of the mortgage still existed, the levy of the attachment was the same as a denial on the part of appellants that the mortgage lien existed, and was in effect a waiver on their part of the lien created by the mortgage. In other words, having sued out an attachment, levied it upon the property in question, and prosecuted the attachment suit to judgment, they must be held to have waived rights which were inconsistent with such a course of procedure. The mortgage lien, being inconsistent with such attachment, was thereby waived, and appellants have nothing upon which to base their action of replevin. Evans v. Warren, 122 Mass. 303; Cochrane v. Rich, 142 Mass. 15; Whitney v. Farrar, 51 Me. 418; Haynes v. Sanborn, 45 N. H. 429; Dyckman v. Sevatson, 29 Minn. 132; 39 N. W. Rep. 73; Jones, Chattel Mortgages (2 Ed.), § 565; Pingrey, Chattel Mortgages, § 808; Cobbey, Chattel Mortgages, § 746.
The case of Whitmore v. Tatum, 54 Ark. 457, cited by appellants, was a case where the mortgagee of real estate had levied upon and sold the equity of redemption. In that respect there is a distinction between real and personal property, for the mortgagor’s equity of redemption in real property may be sold under execution, but not so with his interest in mortgaged personal property. For this reason, neither of the eases cited by appellants conflict with the rule applied by the circuit court in this case. Jennings v. McIlroy, 42 Ark. 236; Whitmore v. Tatum, 54 ib. 457; Rice v. Wilburn, 31 ib. 109.
We have not overlooked the contention of appellants that, at the time the attachment was begun, they were not able to find out which one of the mules owned by Harris was covered by the mortgage. The two mules were similar in appearance. Harris refused to say which mule was covered by the mortgage, and appellants claim that, in this dilemma, the attachment was sued out and levied on both mules, to prevent Harris from taking them out of the state before they could ascertain which one was mortgaged. But whatever cause may have led appellants to bring a suit by attachment, instead of one for the possession of the mule, the proof clearly shows that, having commenced it, they had no idea of abandoning or dismissing such suit. They commenced their action, and caused the mule to be seized under the writ of attachment on the 17th of March, and obtained judgment- on the 28th of March. During all the time the mule was held under the writ of attachment, appellants, so far as the proof .discloses, made no .further effort to find out which mule.was covered by the mortgage, but continued to prosecute their right under the attachment until they obtained judgment and an order of sale. They only desisted when the property was declared to be exempt from sale under the attachment, and taken from the officer by an order of the justice of the peace. Having all this time actively asserted that the attachment was valid, it is now too late to assume the inconsistent position of treating it as of no validity. As the determination of this question disposes of the case, we find it unnecessary to consider the other points discussed by counsel. Finding no error, the judgment is affirmed.