23 Mont. 52 | Mont. | 1899
delivered the opinion of the court.
This action is for damages for the conversion of certain personal property by the defendants as sheriff and deputy sheriff of Deer Lodge county.
Plaintiff stated his cause of action in two counts; in the first, after alleging the official capacities of the defendants, he set up that on August 23, 1895, Maddux and Clark executed their promissory note to plaintiff, wherein they promised to pay to him or order $1,300, with interest, and that on the
For a second cause of action, after referring to the facts set out in his first cause, and making them part of the second cause of action, plaintiff alleged that it was provided by the terms of the chattel mortgage referred to that in case of default of payment of the principal or interest, as provided in the promissory note of Maddux and Clark, plaintiff was empowered and authorized to sell all of the goods and chattels described in the said chattel mortgage in the manner prescribed by law; that, by the terms of the promissory note, §100, with interest, was agreed to be paid by Maddux and Clark to plaintiff on December 1, 1895, but that the said sum was never paid; that it was also expressly provided by the terms of the mortgage that, if default was made in the payment of the principal or interest, as provided in the said note, or if, prior to maturity .of the said promissory note, the property described in the said mortgage, or any part thereof, should be attached, seized or levied upon by or at the instance of any creditor or creditors of Maddux and Clark, then, and in such event, or in either of such events, Reynolds, the mortgagee, should have the right to immediate possession of said goods and chattels, and of the whole and every ■part thereof. The complaint further alleged that on December 2, 1895, the property described in the mortgage was attached', levied upon, and
The defendants, by answer, admitted the seizure and sale of the property, but denied plaintiff’s ownership, and denied the facts relating to the alleged conversion, and justified their action under the proceedings had in the justice’s court on the ground that the mortgage was void as to the creditors of the mortgagors, because of certain defects in the affidavit of good faith required under the statute.
Plaintiff, by replication, admitted that the proceedings were had in the justice’s court under which the writs were issued, whereby the defendants seized the property, but alleged that the judgments were void, and of no effect, because the complaints therein did not state facts sufficient to constitute causes of action, and that the justice had no jurisdiction of the persons of the defendants or of the subject-matter of the actions referred to.
Upon these issues the case went to trial before the court and a jury. Plaintiff offered the chattel mortgage in evidence." Defendants objected upon the grounds that the affidavit required by the statute (Section 3861, Civil Code), was lacking.
“Geo. M. Clark, S. H. Maddux and J. B. Reynolds, the parties to the foregoing chattel mortgage, being severally duly sworn, each for himself, says that the said chattel mortgage is made in good faith to secure the amount named therein, and without any design to hinder or delay the creditors of the said mortgagors. [Signed] “S. H. Maddux,
“Geo. M. Clark,
“J. B. Reynolds.
“Subscribed and sworn to before me this, the 23d day of
August, A. D. 1895. “---,
“Notary Public in and for Deer Lodge County.”
The particular objections of the defendants were that the words “or defraud” were left out of the purported affidavit after the words “hinder or delay,” and, furthermore, that there appeared no signature of any officer to the jurat. The plaintiff offered to prove by the notary before whom the acknowledgment was taken that the affidavit was in fact sworn to by the mortgagors, Maddux and Clark, and the mortgagee, Reynolds, but that he omitted to sign his name. The court would not allow this proof to be. introduced, and held that under the first cause of action the mortgage was inadmissible, because it was void — First, for lack of an affidavit; and, secondly, because the words “or defraud” were left out; but ruled that the mortgage was admissible under the second cause of action, provided the plaintiff would follow its introduction by showing that he was in possession of the property at the time of the levy.
The mortgage, which in its body is in the common form of statutory chattel mortgages, was made to secure the payment of the promissory note of Maddux and Clark to Reynolds for $1,300, payable as follows: $100 was to be paid on October 1, 1895, and $100 on the first of each and every month there- ' after until paid, with interest at the rate of 1 per cent, per month from date until paid. The mortgagors had the right to remain in posession and to use the property until default,
Plaintiff, Reynolds, testified that Clark and Maddux bought the property from him, and gave him a mortgage to secure a note for §1,300, payable as heretofore set forth; that they paid §100 at the end of the first month, and §100 on November 1st; that about December 2d he asked Clark, who had succeeded Maddux and Clark, for §50, the amount due on the note on December 1st, not having been paid as required by the agreement; that Clark paid the §50 to plaintiff, which left a balance of §50 due and unpaid for December. One Hall met plaintiff about that time, and told him he was talking of buying Clark out. Plaintiff assented to a sale by Clark to Hall, and says he agreed with Hall that Hall might buy the property, and own it when he paid him (Reynolds) §1,300 at §100 a month. Hall then went to take possession. On cross-examination Reynolds said that the property had been transferred by Clark to Hall without there ever having been a delivery of possession to him (plaintiff) by Maddux and Clark; that is, that it was transferred directly by Clark to Hall, with Reynolds’ consent. He said that he notified the attaching creditors that the chattels seized were his property until he got his pay, and that he had a mortgage on the property, under which he claimed the property until it was paid for; that he referred to the mortgage of Maddux and Clark, and that he had had a like agreement between himself and Maddux.
John A. Hall testified that on the 2d day of December, and before the levy by the defendants, he bought Clark out, and paid him for his interest in the property, took possession and was in the actual possession of the property at the time of the
The foregoing was the principal testimony in the case. Plaintiff then rested, whereupon the defendants moved the court for a nonsuit, because there was no evidence to show that plaintiff was at any time after the execution of the mortgage in the possession or the owner of the property mentioned in the complaint, and that it was not in the possession of the plaintiff at the time' it was levied upon by the sheriff, and because there was no evidence to show that the plaintiff was the owner of the property. The court sustained the motion. Judgment was entered for defendants for their costs. Plaintiff appeals from the judgment.
The mortgage under consideration had no signature or seal to the jurat. It therefore appeared to have no affidavit accompanying it, and, although filed in this condition, such filing could not supply the omission to comply with a material provision of the statute. Creditors going to the files and records of a county, and finding a mortgage like the one under’ examination, would at once conclude that no oath had been administered to the parties', hence that the mortgage was not such as the law required. On principle, therefore, this mortgage cannot be held valid as against bona fide creditors, without ignoring the statute, and it was properly excluded.
In Hill v. Gilman, 39 N. H. 88, the court expressed its opinion upon a chattel mortgage which failed to contain a certificate of any oath signed by a justice, as was required by the statute of the state. The mortgage was held invalid against a bona fide creditor who attached the property, the court saying:
‘ ‘It appears to us that to hold this to be a good mortgage*61 as against the defendant, who stands in the position of a tona fide creditor of the mortgagor, would be to evade, if not, indeed, to override, a material provision of the statute. If this requirement can be dispensed with without affecting the validity of the mortgage, then may others also. Suppose the parties should take the oath, but through inadvertence neglect to sign it; or suppose the affidavit should be made upon a paper distinct from the mortgage, and, by some mischance, not be attached to it, and the mortgages, with these defects, be récorded, are we to hold them good against creditors? Other suppositions could be made by which other requirements might be neglected, and, by following the principle out, we might, perhaps, find ourselves back to the common-law mortgage. To carry out the intention of the legislature, we think that all the material requirements of the statute must be complied with; that the certificate of the justice who administered the oath is a matter material to be made and recorded; and that, inasmuch as it was not done in the present instance, the mortgage was invalid as to the creditor. ’ ’
The affirmance of the ruling of the learned judge excluding the mortgage for the lack of a proper jurat renders it unnecessary to decide whether or not the omission of the words ‘ ‘or defraud” from the affidavit was fatal to the validity of the mortgage. We pass that point, observing, however, that the statute seems to have intended a separate significance to be attached to the several words “hinder,” “delay,” and “defraud, ’ ’ and that each is required.
Possession in Reynolds was not necessary to convey title to Hall. (Stafford v. Whitcomb, 8 Allen, 518.) Hall, as mortgagor, was lawfully in possession by the transfer from Clark with the mortgagee’s consent. His title was therefore good. The subsequent interference with Hall’s possession by the creditors of those who had theretofore sold out to Hall, being unwarranted, gave to Reynolds, as mortgagee, a right to the possession of the property, and to retake the same at once under the provisions of Hall’s verbal mortgage, for it was a claim and seizure by persons not parties to the contract between Hall and Reynolds. Reynolds, therefore, could maintain conversion against the defendants. (Tuttle v. Hardenberg, 15 Mont. 219, 38 Pac. 1070; Swenson v. Kleinschmidt, 10 Mont. 473, 26 Pac. 198; Jones on Chattel Mortgages, § 445.)
We do not believe there was a conditional sale to Hall. There is some testimony to the effect that there was, but the evidence goes to prove a mortgage by writing from Clark and Maddux to Reynolds, and by word from Hall to Reynolds. Suppose, though, the agreement between Reynolds and Hall was one of conditional sale by Reynolds to Hall, still the evidence did not authorize a nonsuit, inasmuch as the creditors of Clark and Maddux had no right to complain, because the sale was honestly made and consummated before their attachments were levied. Our conclusion upon this branch of the case is that the court ought not to have sustained the motion for a nonsuit, and that for error in having granted the motion, the judgment must be reversed.
Defendants’ counsel says, in his brief, that there is no
In Baltimore & Ohio Railroad Co. v. O' Donnelly 49 Ohio St. 489, 32 N. E. 476, the court said: “The ultimate fact to be pleaded is the conversion, and in actions of that nature a petition with proper allegations of the plaintiff’s ownership of the property and of its value, and which avers that the defendant converted it to his own use, states a cause of action. ’ ’
Tested by these rules, plaintiff’s complaint clearly stated a cause of action.
Judgment reversed.
Reversed.