Central Finance Corp. v. Norton-Morgan Commercial Co.

FLANIGAN, J. (After Stating the Facts as Above.) Notwithstanding that the answer of the appellant specifically alleges that the Circle A cattle were sold under the Circle A mortgage, and the Y-Cross cattle were sold under the Y-Cross mortgage, the suggestion is made that the allegations in paragraph 8 of the answer, which we have quoted, are sufficient upon which to predicate some legal or equitable right in the appellant to apply the surplus proceeds in its hands, derived from the sale of the cattle under the Y-Cross mortgage, to the deficiency due under the Circle A mortgage. For the purpose of this discussion we may assume that by virtue of the selection clause of the Circle A mortgage, the appellant was empowered to pick from the cattle under the Y-cross mortgage a number of like kind to that specified in the Circle A mortgage, to eke out its security, even without an allegation that there were no unmortgaged cattle of the cattle company from which such selection could be made, and even though the descriptions were not in serious question for uncertainty. It is apparent that what appellant now seeks to do is to transfer its right of selection from the cattle under the Y-Cross mortgage to the surplus fund derived from the sale of such cattle. It is plain that if the power was in fact exercised as alleged in paragraph 8, appellant had taken its legal rights in full measure and has no ground for complaint; if, on the other hand- — which we take to be the fact — no attempt was made to exercise the power therein conferred by selection and sale, the power conferred must-be regarded as unexercised. Appellant’s failure to avail itself of such right was a voluntary relinquishment and waiver thereof. It is not alleged that the — 524 — appellee in any way induced the appellant to forego the benefits to be obtained by the exercise of this power. On the contrary, it is evident that the appellee could not have interfered as it had no control over the subject matter. The property has been sold under the Y-Cross mortgage, and the conditions upon which the power might have been made beneficially effective to appellant no longer exist. Whether the power was exercised or not, it is clear that the effect of the transaction is precisely the same as if the Circle A mortgage had contained no such clause, and that the rights of the parties are to be determined without reference to this provision. Our inquiry must therefore be addressed to a determination of the validity of the commercial company’s claim to such surplus fund under its second mortgage on the Y-Cross cattle, free of any lien-secured claim in favor of appellant. In Mooney v. Broadway, 2 Ariz. 107, 11 Pac. 114, it is held that a chattel mortgage is a security .merely, and until foreclosure or some act tantamount thereto, the title of the property mortgaged remains in the mortgagor. See chapter 4, title 35, Rev. Stats. 1913. That the statute just cited contemplates the creation of secondary liens by subsequent mortgages is plainly shown by several of the paragraphs of that chapter. See, in particular, paragraphs 4126, 4136. Paragraph 4134 provides that— “A mortgage of personal property, where the time of payment is therein fixed, may be foreclosed by notice and sale. ...” Paragraph 4137: “ . . . The purchaser shall take all the title and interest on which the mortgage operated.” And paragraph 4139 reads: “The officer or person conducting the sale shall execute to the purchaser a bill of sale of the property, — 525 — which shall he effectual to carry the whole title and interest purchased.” As no equity of redemption is provided for in the statute, the sale is absolute, in the absence of fraud or some irregularity vitiating such sale. In the case of Backhaus v. Buells, 43 Or. 558, 73 Pac. 342, the court, speaking of the relative rights of mortgagor and mortgagee in the mortgaged property after default, uses language descriptive of these rights which correctly sets forth the law to be deduced from our statutory provisions. It is ther¿ stated that a chattel mortgage is in no sense a sale upon condition; that upon default the mortgagee has no right to keep, treat, or dispose of the property as his own, and, further, that— “The legal claim which he [the mortgagee] asserts upon the mortgagor’s default is the lien, coupled with a right to the immediate possession of the property; but, the mortgagee being a trustee of the mortgagor, the union of such lien and right can never ripen into a title until the lien has been foreclosed in the manner prescribed by law.” And, “when the mortgagee secures possession of mortgaged chattels, it is for the purpose of satisfying his debt, upon the discharge of which his right to the property ceases” — citing Freeman v. Freeman, 17 N. J. Eq. 44. It is the contention of the appellant that upon 'default in the payment of the note secured by the first mortgage and possession taken of the property for the purpose of sale, the cattle company had no mortgageable interest in the property; that it had only a chose in action, viz., an equitable right to an accounting. Even if we should grant that the only right of the mortgagor was an equitable right to an accounting, it would not follow that such right to property does not constitute an interest which the mortgagor could not assign or convey. — 526 — The general rule is, we think, correctly stated in 11 G. J., at page 427, that, in the absence of statutory provision to the contrary, any personal property which is capable of being sold may be the subject of a mortgage. And in jurisdictions where, after condition broken and possession taken of the property by the mortgagee, the rule prevails that the mortgagor’s interest is a mere equity of redemption, it has'been held that this equity of redemption may be mortgaged or sold. J. I. Case Threshing Machine Co. v. Rice, 152 Wis. 8, 139 N. W. 445; Smith v. Coolbaugh, 21 Wis. 427; White v. Quinlan, 30 Mo. App. 54. In the case last cited, which is very similar in facts to the case at bar, it is held that a second mortgage of the property by description, as such, is valid as an encumbrance of the equity of redemption. It cannot be doubted, therefore, that the* legal ownership and property right vested in the mortgagor before foreclosure may be sold. As was said in the case of Appleton v. Bancroft, 10 Metc. (Mass.) 231: This right “is founded on the great principle, lying at the foundation of the right of property, that general ownership carries with it a full power of disposition; and when such ownership is not taken away, but only limited, as in case of a lien, the power of disposing still remains, subject only to the lien.” . It is not necessary to inquire into the validity of the sale of the Y-Cross cattle, so far as such sale went beyond the necessity of satisfying the debt due on the first mortgage. If such sale constituted a conversion, that question is not before us, for the sale was ratified by the appellee. Under the authorities, the appellant simply holds the excess moneys in trust for the mort-. gagee, and is bound to account for such moneys in an equitable action for an accounting. Navajo-Apache Bank & Trust Co. v. Desmont, 19 Ariz. 335, 170 Pac. 798. See, also, the following: Vale v. Stubblefield, 39 — 527 — Okl. 462, 135 Pac. 933; Smith v. Donahoe, 13 S. D. 334, 83 N. W. 264; Howard v. Gemming, 10 Wash. 1, 38 Pac. 748; Parker v. Panhandle Nat. Bank, 11 Tex. Civ. App. 702, 34 S. W. 196; Tiedt v. Boyce, 122 Minn. 283, 142 N. W. 195; White v. Quinlan, supra; Charter v. Stevens, 3 Denio (N. Y.), 33, 45 Am. Dec. 444—in which cases the right to the surplus, whether asserted in an action in trover, in assumpsit for money had and received, or other form of action, is recognized. That the right exists is clear, under the facts shown by the pleadings here. Had the second mortgage never been made, an equitable right of setoff might have been asserted by the appellant to retain and apply the money in its hands as against the Circle A cattle company’s demand. This feature of the case has been pressed upon us for consideration in one form or another as the basis of some supposed legal or equitable claim of appellant superior to the claim of appellee. No authorities have been cited, however, to sustain the right of the appellant to retain such moneys as against the appellee. In the case of White v. Quinlan, supra, the first mortgagee was asserting a precisely similar claim as against the second mortgagee, and the decision of the court impliedly held it to be without merit. It is insisted that the appellant’s claim must be considered from an equitable standpoint. We do not think the case calls for a resort to equitable maxims or principles as distinguished from the rules of law plainly governing , the case. But, if we should regard the conflicting claims to the fund from the equitable standpoint alone, as we are asked to do, the equities of the parties are equal, in that both claims are based upon valuable consideration. In addition to the equity of the appellee, however, it is possessed of the legal title to the fund and where the equities are equal the legal title prevails. Appellant’s claim — 528 — by reason of its accidental control and possession of tbe fund is no stronger than would be the claim of any other general and unsecured creditor asserting a claim against the fund already impressed with appellee’s lien. ' As it is not questioned that the judgment of the lower court was for the sum actually due upon the note and mortgage, or that such sum is less than the surplus in appellant’s hands, the judgment, for the reasons we have stated, must be affirmed. ROSS, C. J., and McALISTER, J., concur.