| Mont. | Apr 23, 1894
By this action plaintiff invokes the interposition of the equity power of the court to compel defendant to allow plaintiff to redeem certain goods and chattels from the
The complaint sets forth: That to secure payment of three thousand dollars, evidenced by a promissory note executed and delivered by plaintiff to defendant Sebastian Wustum, plaintiff duly executed, acknowledged, and delivered to him a chattel mortgage of plaintiff’s one-half interest in and to a certain band of horses, and other personal property, which said promissory note and mortgage were thereafter duly assigned and ‘ delivered to defendant La Mott. That, after maturity of the debt secured by said mortgage, defendant La Mott took possession of said chattels, and has ever since held possession thereof, treating the same as his own, and selling portions thereof, the proceeds of which sales amount to three thousand dollars; That said property was of the value of eighteen thousand dollars. (This averment not being clear, however, as to whether plaintiff’s half interest, or the whole property, was of that value.)
In addition to said chattel mortgage executed and delivered to secure said debt, certain real estate was also mortgaged as further security for the same debt, which real estate was, on default of payment, after maturity, of said debt, sold, pursuant to the order of court, in a foreclosure action, in the sum of five hundred dollars, to be applied on said mortgage debt. That, since defendant La Mott took possession of said chattels, he executed and delivered to defendant Wustum a chattel mortgage thereon, purporting to secure a debt of three thousand dollars owing by La Mott to said Wustum. Wherefore, defendant Wustum is made party to this action, as still having an interest in said chattels. Plaintiff further alleges that he is able, willing, and desirous to pay all that may be found due on his said mortgage, and interest, after an accounting and credit thereon of the pr'oceeds derived from sales of said chattels by La Mott since he took possession thereof, as well as the proceeds derived from the sale of said real estate under said foreclosure proceedings. And plaintiff asks that an
The complaint was demurred to on the averment that it fails to state facts sufficient to constitute a causes of action. This demurrer was, on consideration by the court, sustained; and, plaintiff having declined to amend his complaint, judgment was entered in favor of defendants, from which plaintiff prosecutes this appeal, insisting that his complaint shows sufficient grounds for equitable relief in the behalf demanded by plaintiff.
The demurrer was well taken, because, as appears from an examination of the complaint, plaintiff entirely failed to allege any fact showing that, in taking possession of said chattels, defendant, in any manner, proceeded contrary to, or in neglect or violation of, the terms of said mortgage. According to plaintiff’s complaint, defendant La Mott took possession of said chattels after maturity of the mortgage debt secured thereby. So far plaintiff proceeds according to the terms of the mortgage, which is, in hese verba, made part of plaintiff’s' complaint. Thereafter, if La Mott proceeded to extinguish the title and right of redemption in plaintiff, by advertisement and sale, according to the terms of said mortgage, or caused the same to be done by action of the sheriff of said county, according to law, and the terms of said mortgage, or accomplished the same by foreclosure thereof .through action in court, defendant may lawfully have become the purchaser of said chattels, and still continue in possession, treating the same as his own, as alleged in the complaint. But that La Mott did neglect to do those things the complaint does not show. The complaint is entirely silent upon these important and material points. It is not permissible to assume, without averment, that a man proceeded wrongfully to convert property. The facts showing such wrongful conversion must be alleged. Defendant La Mott may have doue all the complaint alleges in regard to said property, and yet violated no right or equity of plaintiff, provided he likewise fulfilled the terms of said mortgage as to advertisement and sale of the property, and
Affirmed.