Pettee v. the John Deere Plow Co.

Opinion of tbe court by Hainer, J.: The principal question presented by tbe record and argued by counsel for plaintiff in error is that the foreclosure proceedings were void because it was not authorized under tbe mortgages and was in violation of tbe agreement of tbe parties contained in said mortgage. It is contended by counsel for plaintiff in error that the action of tbe defendant in error as mortgagee in advertising and selling tbe goods at public sale without the consent of tbe mortgagor .was void and constituted a conversion of tbe property. This contention is based upon tbe proposition that tbe stipulation contained in the mortgage which provided, “that the mortgagee shall take immediate possession of tbe mortgaged property and sell tbe same at retail or wholesale” precludes tbe mortgagee from resorting to tbe remedies provided by tbe statute in case of a breach of tbe conditions in tbe chattel mortgage, although tbe mortgages contained tbe usual provision for foreclosing by notice and sale. We think this contention is unsound. Section 3264 of our Statutes of 1893 provides as follows: “A mortgagee of personal property, when tbe debt to secure which the mortgage was executed becomes due may fore *472 close the mortgagor’s right of redemption by a sale of the property, made in the manner and upon the notice prescribed by the article on pledge, or by proceedings under civil procedure * * The stipulation which provided that the mortgagee shall take immediate possession of the property and sell the same at retail or wholesale does not preclude the mortgagee from resorting to the remedies provided for by the statute in case of a breach of the conditions of the mortgage. This provision conferred additional rights and privileges upon the mortgagee, it enlarged his powers, but did not restrict them. There is nothing in the stipulation or agreement of the parties- that attempts to abridge the mortgagees rights to foreclose these mortgages under the statute. The record shows conclusively that there was a breach of condition in these chattel mortgages in this, that the notes were past due, and that the foreclosure and sale of the property mortgaged was made in strict conformity with the statute. We cannot conceive in what manner the rights of the plaintiff in error could be prejudiced or injuriously affected by reason of the fact that the property was advertised in the manner provided for by our statute and that it was sold at public sale and the proceeds thereof applied upon the indebtedness. The mortgagor having authorized the mortgagee to take immediate possession of the property and to sell the same at wholesale or retail surely cannot complain after a default in the mortgages that the mortgagee pr >- eeeded to foreclose and sell the same in manner and form provided by our statute. It is next contended by counsel for plaintiff m error that the sale was void because it was not made in good faith and was a mere sham or subterfuge. It is sufficient answer to this question that the bona lides of the sale was an issue submitted *473 to the trial court and the court having found against the plaintiff in error such finding will not be disturbed here unless it is clearly against the weight of the testimony. This court has repeatedly held that a finding of the trial court upon a controverted question of fact will not be disturbed by this court unless manifestly against the clear and decided preponderance of the evidence. (Penny v. Fellner, 7 Okla. 386; Light v. Bank, 2 Okla. 542; National Bank v. Earl, 2 Okla. 617.) There is no evidence in the record to sustain counsel’s claim that the sale was a sham or subterfuge. On the ’co7'-trary the evidence clearly sustains the finding of the trial court that the foreclosure proceedings of notice of sale were regular and made in good faith and for the best interests of the parties under the conditions and circumstances existing at that time. We have examined the record and find no error therein. The judgment of the district court is, therefore, affirmed Irwin, J., having presided in the court below, and Bur-ford, C. J., who was of counsel in the court below, not sitting, all the other Justices concurring.