No. 26 | Wash. | Feb 13, 1890
The opinion of the court was delivered by
Plaintiffs in the court below alleged that they were the owners of two oxen and their yoke, which property the defendant had taken into his possession unlawfully and without plaintiffs’ consent, and they demanded the return of the property. Defendant denied the ownership of the property by plaintiffs, and the unlawfulness of the taking, and alleged title in himself. At the trial, plaintiffs, to sustain their allegation of ownership produced, and, over the objection of the defendant, were allowed to put in evidence a chattel mortgage executed by certain third parties to the plaintiffs, covering the.
In our judgment, the chattel mortgage, under the statutes of Washington, did not convey to the holders any title to the property in question. Chapter 141 of the code provides ample means for the creditor when his security is threatened, and the common-law right of possession seems to be completely abrogated in that regard. Therefore, proof of the existence of the mortgage did not tend to support the allegation 'of ownership, and the motion for a nonsuit should have been granted.
We are urged to hold that under § 108 of the code there was an immaterial variance which could have been cured by amendment; but it was not a mere variance but a failure of proof; indeed, had the facts been pleaded, instead of the mere conclusion of ownership, under our view of the chattel mortgage act, plaintiffs would have no cause of action. While the mortgage was not foréelos d the mortgagors could have recovered the possession, or if the possession of the defendant endangered the security of the plaintiffs, they could, under the statutes, have the property taken into possession and held for disposal according to the provisions
The judgment is reversed, with directions to the successor of the court below to sustain the defendant’s motion for a nonsuit, and dismiss the action.