Steidl v. Aitken

Bruce, J. (after stating the facts as above). In the case before us the finding’s of the court have the same effect as those of a jury. We cannot say that there is not only some, but much competent and creditable, testimony in support thereof, and such being the case, we are bound thereby. Jasper v. Hazen, 4 N. D. 1, 23 L.R.A. 58, 58 N. W. 454. We are not called upon to decide in this case the much mooted question whether a belief in the insecurity of the debt, which is not founded upon the fact, will justify the taking possession of the property by the mortgagee before the maturity of the debt, nor are we required to pass upon the question as to whether a clause in a mortgage to the effect that the mortgagee may take possession of the property “whenever he shall chose to do so” will be enforced by the courts or be repudiated upon grounds of public policy. It is enough for us to say and to hold, as we must and should, that a mortgagee in such a case is not authorized by the law or by the contract to take other than quiet and peaceable possession of such property, or possession by means of some legal remedy such as claim and delivery. If he takes possession of it either by force or fraud he is a trespasser. Thornton v. Cochran, 51 Ala. 415; Street v. Sinclair, 71 Ala. 110; Thorn v. Kemp, 98 Ala. 425, 13 So. 749; Kidd v. Johnson, 49 Mo. App. 486; Kilpatrick v. Haley, 13 C. C. A. 480, 27 U. S. App. 752, 66 Fed. 133; McClure v. Hill, 36 Ark. 268; First Nat. Bank v. Teat, 4 Okla. 454, 46 Pac. 474; 7 Cyc. 12 — 14. Cobbey, Chat. Mortg. §§ 493, 870; Ford v. Ransom, 39 How. Pr. 429. Not only doe's he become a trespasser in such a case, but, when such seizure is accompanied by malice, under the provisions of § 6721, Compiled Laws of 1913, being § 4695, Bev. Codes 1895, § 6145, Bev. Codes 1905, the wrongful act extinguishes his lien, and in any subsequent action in claim and delivery, whether brought by himself or against him by the person wronged, he can no longer assert or rely upon it. There is therefore no merit in defendant’s contention that all the damages that can be recovered in this case is the value of the use of the property [290] from the time of its seizure to the time of the maturity of the mortgage debt, if debt there was. The seizure was actuated by malice, and accomplished by force and fraud, and was therefore wrongful. Such wrongful seizure extinguished the lien of the mortgage, and therefore the plaintiff was entitled to the possession of the property. It is true that § 6721, Compiled Laws of 1913, provides that even in such a case and provided the debt secured is a valid one, “in an action for the conversion of personal property, the defendant may show in mitigation of damages the amount due on any lien to which the plaintiff’s rights were subject, and which was held or paid by the defendant or any person under whom he claims.” The action before us, 'however, is one in claim and delivery, and not in conversion. Technically speaking, it is an action of replevin or detinue. See Willis v. DeWitt, 3 S. D. 281, 52 N. W. 1090; Dow v. Dempsey, 21 Wash. 98, 57 Pac. 355. The mere fact that the statute provides for a recovery of the value of the property -in case delivery cannot be made does not change the action into one of conversion or of trespass. Dow v. Dempsey, supra. At the time of the beginning of the action of claim and delivery, the lien had been extinguished by the force of the statute, and no claim of possession could be made by the defendant under his alleged notes and chattel mortgage, even if the same were valid. So, too, in the case at bar, there is no attempt made to plead the facts which are attempted to be relied upon in mitigation of damages, and that such facts must be specially pleaded is-well settled. Phillips on Code Pleading, § 385, p. 396; 5 Enc. Pl. & Pr. 773. It is true that the answer mentions the mortgage, but the mortgage is merely mentioned and relied upon as an excuse for the seizure. There is no attempt to plead or prove the mortgage debt in mitigation of damages. All the defendant asks for, indeed, is for judgment to the effect that he is entitled to the possession of the property. Such being the case, and the lien of the mortgage being extinguished, the contention of the defendant that all that the plaintiff can possibly recover is the value of the use of the property between the time of the seizure and the time when the alleged mortgage debt became due, which was sometime after the seizure but before the trial, can have no foundation. We are not unmindful of the case of Love joy v. Merchants’ State Bank, 5 N. D. 623, 67 N. W. 956, which held that in an action of con [291] version the amount secured by the mortgage might be offset or pleaded in mitigation of damages. That case, however, was an action of conversion, and was specifically treated as such. The opinion was handed down in a case which arose under § 1718 of the Civil Code of 1877, which section contented itself with merely declaring the lien extinguished, although the appeal was argued after the section was amended by § 6145, Eev. Codes 1905, § 6721, Compiled Taws of 1913, which provided that “in an action for the conversion of personal property the defendant may show in mitigation of damages the amount due on any lien to which the plaintiff’s rights were subject, and which was held or paid by the defendant or any person under whom he claims.” The decision held that in order to avoid a circuity of actions, and on account of the fact that the general rule of a necessity of a possession in the defendant at the time of the beginning of the action did not apply to actions for damages, the defendant in an action for conversion would be allowed to recoup the value of the specific lien, and that he might likewise mitigate the damages-by limiting the plaintiff’s recovery to the amount which would compensate him for the actual loss to him by such conversion. The court, however, emphasized the fact that the action was one of conversion, and distinguished the case then at har from that of Everett v. Buchanan, 2 Dak. 249, 6 N. W. 439, 8 N. W. 31, by stating that the former action was one in claim and delivery. This very distinction the legislature seems also to have made and intended in the amendment contained in § 4695, Eev. Codes 1895, § 6145, Eev. Codes 1905, § 6721, Compiled Laws of 1913, which puts in statutory form the rule announced in Love joy v. Merchants’ State Bank, supra, and which seems to have as expressly limited the right to actions in conversion as did the opinion just cited. We have no fault to find with the trial court’s estimate of the value of the property, nor with his assessment of damages. There was,, it is; true, a conflict in the testimony, but there was suifieient evidence orn which the court could base its findings. Jasper v. Hazen, 4 N. D. 1, 23 L.R.A. 58, 58 N. W. 454; First Nat. Bank v. Prior, 10 N. D. 146, 86 N. W. 362; State ex rel. Morrill v. Massey, 10 N. D. 154, 86 N. W. 225. Appellant contends that where the evidence establishes that the property consists of separate chattels which-are in no way dependent upon one another for their value, a judgment cannot be rendered for the ag [292] gregate value of the property in case it cannot all be returned. This objection would, no doubt, be good in some jurisdictions. The rule, however, which it announces, has no application in North Dakota, or rather no application under the record in the case at bar. As intimated by us in the case of Smith v. Willoughby, 24 N. D. 1, 138 N. W. 7; “it does not seem . . . that under our peculiar statute such specific valuation is necessary except where it is demanded upon the trial and the jury are instructed to ascertain the same.” See §§ 7036 and 7075, Rev, Codes 1905, being §§ 7635 and 7682, respectively, of the Compiled Laws of 1913. See also 34 Cyc. 1535. There was no demand for a specific valuation in the case at bar. Thei’e was therefore no error in finding the value in the aggregate. So, too, although the judgment was in the aggregate, there was a specific finding of fact as' to the value of each chattel which was taken, and if the motion or demand had been made in the court below, we have no doubt that the learned trial judge would have changed the judgment into a specific foi*m. The judgment of the District Court is affirmed. Burke, J.: I concur in the result only.