Nichols & Shepard Co. v. Dunnington

Opinion by DICKSON, O. Tbe parties w.ill be referred tcrf as plaintiff and defendant as they were designated in the trial court, inverse to the order in which they appear in this court. On the 26th day of August, 1922, the plaintiff, as administrator ' of the esrate of Roy Messick, deceased, commenced this action in the district court of Allfalfa county against the defendant, to recover double tbe value of certain machinery alleged' to have been wrongfully embezzled and alienated by the defendant after the death of the said Roy Messick and before the appointment of the administrate!.' of the estate. The' material averments set out in the plaintiff’s petition are that on the 22nd day 'of March, 1922, *232 tlie said Roy Messick departed this life, and on the 25th day of August, 1922, thei plaintiff -was appointed administrator of the estate of Roy Messick, deceased; that at the time of1 his (death the said Roy Messick was the owner of certain threshing machinery, to wit: one separator, one wind stacker; one feeder; one feeder .extension; one oil-gas engine; one belt, and all 'belts for separator and engine, all of the value of $4,000. That afteir the dearth of the safid Roy Messick the defendant wrongfully embezzled and alienated said machinery, and the plaintiff prays judgment fot $8¡,000. By way of amended answer to this petition, the defendant phiaided: (1) A specific denial that it had embezzled or alienated any of the property described in the plaintiff’s petition. (2) The defendant alleged that on the 22nd day of July, 1921, the said Roy Messick purchased ail of the1 machinery described in the plaintiff’s petitioln from the defendant, and executed and delivered to thei defendant for the purchase price of said machinery his promissory notes secured by a chattel mortgage on said machinery, upon which there wa$ due and owing at; the time the answer was filed $3,731; that in the early part of July, 1922, the defendant discovered that said machinery was in Alfalfa county, and in the hands of strangers, and took possession thereof under the terms of its mortgage; that at- the time the defendant took possession of said machinery it had no knowledge of the death- of said Roy Mes-sick, and took possession thereof in order to1 preserve the same. (3) By way of cross-petition the defendant set up the notes and mortgage -above referred to, and thei amortuit due and unpaid thereon, and prayed judgment against said estate for the sums due and for the foreclosure oí said chattel mortgage. (4) For further answer the defendant alleged, in substance, that at the time of his death, the said Roy Messick was a (resident of Ellis county, Okla., amd was not and never had been a resident of Alfalfa county, Okla.; that the said Carl S. Dun-njngton, by means of fraud and false testimony, induced the coiunty court of Alfalfa cotunty to assume jurisdiction in the matter of the estate of Rioy Messick, deceased, and to appoint the said Carl IS. Dunnington nd-mfcnistratG-r thereof; that said county court was withotat jurisdiction to make said appointment, and that the sa.id Carl S. Dun-nington had no capacity to maintain this suit, and .prayed that the lilaintiff’s petition be dismissed. On molían of the plaintiff tho¡ fourth paragraph olf the defendant’s answer was stricken out, and the defendant excepted. The plaintiff thereupon filed a reply, putting in issue tha affirmative averments contained in the first, second, -and third paragraphs of the defendant’s answer. Upon the issues thus framed the ease was tried on the 19th day of September, 1923, and by agreement of the parties the case was tried to the court without the intervention of a jury. There was substantially no dispute as to the facts. In. June, 1921, the deceased, Roy Messick, purchased from -the Nichols & Shepard Company the threshing machinery described in the plaintiff’s petition, and executed the promissory notes and mortgage abofrct referred to -as the purchase price thereof. In July, 1922, the defendant’s agent discovered said machinery in Alfalfa county, and under the terms of the mortgage took possession thereof. After taking possession the defendant advertised said machinery fclr sale under the terms of tlie mortgage, and bid it in in the name of the defendant, retaining possession of the machinery. A little later on, the defendant moved said machinery to Cherokee, and had it stored in Cherokee in a store room where it remained until the trial of the cause. After storing the machinery in Cherokee, the defendant again advertised it for sale under the terms of the mortgage, and again bid it in in tbe name of the defendant, the defendant remaining in i>os-session. There was no evidence tending to show that Ihe defendant knew, at the time it tdok possession of the mortgaged property,- of the death of the said Roy Messick. The said Roy Messick stated, in the mortgage referred to, -thiait he was a resident of Ellis cduniy, Okla., and the machinery was found in Alfalfa county. The court found tha machinery to be of the -value of $3,000; that the indebtedness due upon the promissory notes and chattel mortgage was $4,008, and rendered judgment in favor of the administrator for anu-bla the value of the machinery, $6,000, and deducted therefrom -the amount of said indebtedness, and rendered judgment in favor oif tbe plaintiff and against the defendant in -the sum of $1,998. From this jugmrait the plaintiff has duly appealed to this court by petition in erroir and case-made attached. The errors of assignment relied upon are, in effect, (1) thait rha finding -and judgment is contrary to law; (2) that the finding and judgment is contrary to the evidence. The action of the court in sustaining the plaintiff’s motiota ro strike out the fourth *233 paragraph of defendant’s .answer tis also assigned as error. No authority is presented in support of this assignment, however, and it will! not be further considered here. We will now consider the case upon the merits. Section 1220, O. O. S. 1921, provides : “If any peirson, before the granting of letters cestamentaa-y or of administration, embezzles or alienates any of the moneys, goiods, chattels, or effects of a decedent, he is chargeable therewith, and liable to an action by the executor or administrator of the estate, for double the value of the property so embezzled or alienated, td be recovered for tbe benefit of the estate.” (It will be observed that by tbe terms of this section; (1) That one who embezzles any money or property of the deceased person prior to the appointment of an executor or administrator is liable for double the value of tbe property or money so embezzled ; and (2) one who alienates money or property belonging to tbe estate of a deceased person before tbe appointment of an executor or administrator is liable for double the value of tbe money or property so alienated. In order to recover tbe penalty prescribed by this statute tbe plaintiff must fasten one of the enumerated acts upon the defendant. There is no contention that the defendant embezzled this property. The defendant took possession of the property under the terms of its mortgage, and this it had a right to do, regardless of whether an administrator had been appointed or not. Secrest v. Wood, 98 Okla. 60, 224 Pac. 349. In order to render judgment against tbe defendant for double the value of this property, as in this case, the court had to find that the defendant alienated said property within the provisions of section 1220, supra. There was no evidence to support such finding. The term “alienate,” as used in section 1220, O. O. S. 1921, signifies- the wrongful transfer of such property to another. Aultman & Taylor v. Foss, 86 Okla. 169, 207 Pac. 308; 2 C. J. 1034. In Jahns v. Nolting, 29 Cal. 508, the court discussing a statute practically identical with this section says: “To alienate signifies to wrongfully transfer such property to another.” And in thei case of Litz, Adm’r, v. Exchange Bank of Alva, 15 Okla. 564, 83 Pac. 790, relied on by the plaintiff, it is expressly pointed out that the property was sold by tbe' defendant, and possession passed to other parties. In the case at bar there was no such transfer. True, the defendant offered to sell thus property after the death of Mes-sick, and before the administrator was appointed, but offering to1 sell it is not sufficient. Bidding it in in behalf of the defendant and remaining in possession in no way changed the status: “A void attempt to forclose a chattel mortgage in which thei mortgagee bids in and retains the property is not a conversion.” Powell v. Gagnon (Minn.) 58 N. W. 1148. ■Much less an alienation or a transfer of such property to another. “Where personal property seized by a, mortgagee updn a chattel mortgage is sold as a formal, but abortive, foreclosure sale, to the mortgagee hiimself, who retains possession of the property, the sale does not affect the rights clr liabilities of either party to the mortgage, whether the seizure be wrongful ok not.” Cushing v. Seymour et al. (Minn.) 15 N. W. 249. For the reason stated the judgment appealed from is reversed and remanded to the district court of Alfalfa county, with directions to set aside the judgment and sustain the defendant’s rnotidn for a new trial, and to further proceed with the case in conformity with the views herein expressed. By the Oourt: It is so ordered.