170 P. 798 | Ariz. | 1918
This is an action for an equitable accounting. The defendants answered by plea in abatement, res judicata, election of remedies, the statute of limitations, a general demurrer, and a denial of each allegation of the complaint. The court overruled all the dilatory pleas, and properly so. An accounting was had, and the court found a., balance due the plaintiff in the sum of $618.45, for which judgment was given. The matters urged for a revérsal of the judgment occur upon the pleadings and the judgment, with some modification, must be affirmed.
The appellee Caroline Desmont was the owner of a band of sheep ranging in Apache county. The appellee William Wahl was the lessee of the sheep. The appellees, being indebted to the Apache County Bank in the sum of $5,000, gave a promissory note therefor and a chattel mortgage upon the sheep to insure the payment of the debt. _ Upon default, the mortgagee, in the exercise of a power, sold the sheep to Richard Gibbons for $11,000. The appellant, the Navajo-Apache Bank & Trust Company, is the successor of the Apache County Bank, taking over all of its assets and assuming all of its liabilities. While it is not alleged that such assets included this particular note and mortgage or the proceeds thereof, such defect of the complaint was amendable, and could have been cured by special demurrer. The general allegation was sufficient to withstand a general demurrer.
Where property is conveyed as security for the payment of a debt, a trust is thereby created, and in such a case the grantee is a trustee for the grantor for what remains over and above the debt. Perry on Trusts, par. 602d; 25 Cyc. 1152.
A mortgagee becomes a trustee for the mortgagor as to the. surplus received upon a sale in the exercise of a power, and the existence of this relation gives the mortgagor the right to a court of equity to obtain an account of the trust. Flanders v. Thomas, 12 Wis. 456; Vick, v. Smith, 83 N. C. 80; Korns v. Shaffer, 27 Md. 83; Jones on Chattel Mortgages, par. 817.
A consideration of this principle makes the remedy of appellees plain. Appellee Desmont had theretofore commenced
“The doctrine of estoppel by judgment, or res judicata, as a practical matter, proceeds upon the principle that one person shall not a second time litigate, with the same person or with another so identified in interest with such person that he represents the same legal right, precisely the same question, particular controversy, or issue which has been necessarily tried and finally determined, upon its merits, by a court of competent jurisdiction, in a judgment in personam in a former suit.” 245 U. S. 337, 62 L. Ed. 77, 38 Sup. Ct. Rep. 77, 78.
The case of Coates v. Santa Fe etc. Ry. Co., 15 Ariz. 25, 135 Pac. 717, cited by appellant, is not in point. In that case the judgment went to the merits. . Mrs. Desmont also had commenced and dismissed actions to restrain a sale of the sheep under the power contained in the mortgage, to replevy the sheep from the purchaser at the foreclosure sale, and to recover damages for a conversion of the property. These actions were all ill-advised. It was a mere fancy of hers that these remedies were suited to her case.
“The principles governing election of remedies are necessarily based upon the supposition that two or more remedies exist. If in fact or in law only one remedy exists, there can be no election by the pursuit of another and mistaken remedy.” 9 R. C. L., Election of Remedies, p. 962, par. 9.
There was a choice of remedies involved in the case of Dowdy v. Calvi, 14 Ariz. 148, 125 Pac. 873, and the exercise of a choice thereof. That case is not, therefore, an authority, for appellants under the circumstances of this case.
In the action by Mrs. Desmont to restrain a sale of the sheep, the court, in dissolving a temporary injunction, exacted a bond for any damages that might result to plaintiff by reason of the sale. It is argued that by reason .thereof the only remedy of the appellees was an action on the bond, but we perceive no force in the argument. The mortgagee, aftér'
The appellees, however, are not entitled to sue the officers of the bank in their individual capacities for a purely corporate matter.
The judgment against the Navajo-Apache Bank & Trust Company is in all things affirmed. The judgment against W. H. Burbage and F. W. Nelson, individually, is reversed, with directions to dismiss as to them. Burbage and Nelson to recover their costs, if any, in this court and in the court below.
CUNNINGHAM, J., concurs.
ROSS, J., having been of counsel in the matter, took no part in the decision of this cause.