Henry Jennings & Sons v. Weinberger, 146 P. 1087

Henry Jennings & Sons v. Weinberger

146 P. 1087 | Or. | 1915

Mr. Justice Burnett

delivered the opinion of the court.

The bill of exceptions discloses that the plaintiff introduced in evidence an instrument which recited that it had leased to Mrs. Huida Stephens a building to be used as a hotel at a certain rental, and had also rented to her the personal property in controversy, the title to remain in the plaintiff until an agreed purchase price should have been paid in full. The document further provides that for the payment of the rent of *558the building, as well as for the lease of the furniture, under the executory contract of sale for the same, the plaintiff should have a chattel mortgage lien upon the furniture. In that respect the instrument was conditioned that in default of the payment of the rent of the premises or of the personal property, or in case any of it should be attached or levied upon by the creditors of Mrs. Stephens, the plaintiff should have a right to re-enter upon the premises, take possession of the goods, and sell them on certain terms prescribed in the instrument. The identity and validity of this chattel mortgage lease was not disputed. Having introduced this document in evidence and having shown that the mortgagor, Mrs. Stephens, was in arrears of rent of the premises for two months, the plaintiff rested and moved for findings in its favor. The court denied this motion and the defendant put in evidence his writs of attachment with the statement that he had taken possession of the property, and that the plaintiff, after having given notice of sale, had attempted to sell the same while still in his keeping.

1, 2. On this record the court passed judgment for the defendant. He contends that the plaintiff acquired no title by virtue of the sale at which the latter was the only bidder, and that the proceeding was void because the plaintiff did not then have the chattels in custody. He further maintains that the mortgage had been foreclosed, and, as the purchaser relied upon the title thus derived, he must stand or fall by that title. The case is governed by the well-settled rule, declared in Mayes v. Stephens, 38 Or. 512 (63 Pac. 760, 64 Pac. 319), to the effect that the mortgagee of chattels, after condition broken, has a qualified ownership in the goods which will support his action of replevin in which he *559alleges a general ownership of the property. As against a subsequent attaching creditor or an officer holding such a writ, this constitutes paramount title and must prevail over the attachment.

3. The position of the defendant is inconsistent. If the attempted foreclosure was void, it did not affect the plaintiff’s title under the mortgage, the condition of which had been broken. If it was valid, it passed the property to the plaintiff, and it is still entitled to recover. On the documentary evidence introduced there was nothing to support the findings of the court; hence the judgment must be reversed.

Reversed. Rehearing Denied.

Mr. Chief Justice Moore, Mr. Justice McBride and Mr. Justice Benson concur.