212 P. 970 | Idaho | 1923
This is an action in claim and delivery, brought to recover possession of two automobiles or their •value in case delivery cannot be had. The court directed a verdict in favor of appellant as to one of the automobiles, as to which there is no controversy here, and this appeal is from that part of the judgment, based upon the verdict of the jury, awarding possession of the other automobile to respondents.
The complaint alleges ownership and right of possession in appellant. Eespondents’ answer alleges right of possession based upon a lien for repairs and sets up the title in one Mrs. Jose Bengoeehea. Upon the issues thus framed the cause was tried in the court below.
It appears from the record that one Jose Bengoeehea executed a chattel mortgage to the Spokane Cattle Loan Company upon certain sheep and camp equipment, including “All horses, camp outfits and camp equipment of every kind
Appellant sought to show its title and right of possession based upon this chattel mortgage, claiming that the automobile was covered by the mortgage, that the mortgage was foreclosed and the automobile bid in by the Spokane Cattle Loan Company. Thereafter, a bill of sale was given by the latter company to appellant covering this ear. It affirmatively appears from the record that this automobile was the sole and separate property of Mrs. Bengoechea and that it was not included or intended to be included in the chattel mortgage heretofore mentioned. We think, therefore, that appellant failed in its proof to establish either its title or right to possession of this car.
This being an action in claim and delivery the only question for determination was that of the right of possession, and it was incumbent upon appellant to establish its right of possession upon the strength of its own title and not the weakness of respondents’ title. (Carstensen & Anson Co. v. Wright, 25 Ida. 492, 138 Pac. 830; St. John v. Swanback, 39 Neb. 841, 58 N. W. 288; Robb v. Dobrinski, 14 Okl. 563, 1 Ann. Cas. 981, 78 Pac. 101; Gallick v. Bordeaux, 31 Mont. 328, 78 Pac. 583; Kelly v. Lewis, 38 Colo. 18, 88 Pac. 388.)
The ownership or right of possession as between Mrs. Bengoechea and respondents is not involved in this proceeding, she not being a party to this action, and, while it may be true that respondent was a trespasser and acquired no lien by virtue of which possession might be retained as against Mrs. Bengoechea, it is of no avail in this action to appellant.
The judgment of the lower court is affirmed. Costs are awarded to respondents.