Knowles v. Herbert, 11 Or. 54

Knowles v. Herbert

11 Or. 54 | Or. | 1883

By the Court,

Watson, C. J.:

The facts in this case necessary to be stated, are briefly these: Tony Ward, being indebted to defendants, T. Gf. *55Cockrill & Co., on. the 15 th of January, 1877, gave his note to said company for $812 25, payable in three months, with interest from date at one per cent, per month. To secure the payment of this note, Ward executed a chattel mortgage on certain articles of personal property then belonging to him and in his possession. The mortgage was delivered the same day, and properly recorded two days afterwards. On May 25, 1880, F. W. Knowles, the appellant, commenced an action against said defendants, T. G. Cockrill & Co., and the defendants, Strum & Co., to recover the sum of $891 31 and interest, and caused the debt due from Ward to T. G. Cockrill & Co. upon said note to be attached in said action, May 27, 1880. Ward’s certificate to the notice served upon him in the attachment proceeding was as follows: “T have no property in my possession belonging to or secured to T. G. Cockrill & Co. I owe him personally one thousand dollars or thereabouts.” The defendants in the action brought by Knowles were non-residents, but service was made by publication, and judgment was obtained against them by default on May 25, 1881, for the sum of $998 26 and costs; and it was further ordered by the court that execution issue therefor, and that the debt so attached be collected and applied in satisfaction of said judgment. Ward continued to be the owner and to hold possession of the property until October 1, 1881, when he sold an undivided one-half interest for $375 to the garnishee, Joseph Herbert. They after-wards remained in possession together as partners until February 17, 1882, when Ward, for the consideration of $600, sold all his remaining interest in the property to Herbert, and delivered the possession to him. Herbert afterwards, on the 23d day of the same month, mortgaged the property to A. W. Border to secure the payment of *56$400 due from Mm to Border. On the 28th day of the same month execution was issued on said judgment, and on the 1st of March, 1882, the sheriff demanded from Ward the amount admitted by him to be due, in his certificate before mentioned, to T. G. Cockrill & Co. to be applied on said execution. Ward refused to make any payment, and on the 1st day of April succeeding, the sheriff served said execution on Herbert, the garnishee herein, by delivering him a certified copy of the same, together with a notice specifying that all property in his possession belonging to T. G. Cockrill & Co. and Tony Ward, or either of them, and particularly the property mentioned in the chattel mortgage, was levied upon under said execution. Herbert answered denying the possession of any property belonging to either of said parties—T. G. Cockrill & C°- or Tony Ward. Hpon Herbert’s examination in the proceedings supplemental to execution, provided for in title 2 of chap. 3 of the code of civil procedure, before the court, the foregoing facts appearing, he was discharged with judgment for Ms costs, and hence this appeal.

The statement of the case, in our opinion, conclusively demonstrates the correctness of the decision below. The property was neither Ward’s nor T. G. Cockrill & Co.’s when the execution was served on Herbert, the garnishee and respondent. It had not been attached. It was Herbert’s property absolutely, subject only to the chattel mortgage lien. That lien had not been foreclosed, and it is conceded in the argument for appellant to be the settled law in this state that a chattel mortgage, until it has been foreclosed, conveys no title or interest in the property covered .by it, except a mere lien to the mortgagee. But it is strenuously contended by counsel for the appellant that the mortgage lien may be enforced in this proceeding in favor *57of the execution creditor, and 'that to this extent the proceeding should be treated as a suit to foreclose. But while the forms of actions are abolished, and the pleadings allowable on either side prescribed by the code, the essential distinctions between the respective jurisdictions of law and equity have not been abrogated; and it makes no difference that both are administered in the same courts.

That the proceeding supplemental to execution, under our code, is purely at law, can admit, we think, of no serious question. Not only so, but it is statutory and limited to a particular object and a particular mode of investigation, which, it seems entirely safe to say, cannot by any possible construction be held to embrace any equitable jurisdiction of a nature so important as that claimed by appellant’s counsel. If by force of the levies under the attachment and execution, the appellant acquired any’ right to enforce the mortgage security against Herbert and Border, as incident to the debt levied upon, he must proceed to foreclose it, as the original holders would have been compelled to do, and cannot be awarded such relief in this proceeding. The judgment of the circuit court is affirmed.

Judgment affirmed.