Harvey v. Lidvall

Mr. Chief Justice Bean delivered the opinion. 1. To support the ruling of the trial court it is contended [560] that the complaint does not state facts sufficient to constitute a cause of action because the mortgage, under which plaintiff claims, is not set out in the complaint, either in haec verba, or in substance, or legal effect. It has been held that, in an action by a mortgagee after condition broken, to recover possession of the mortgaged property, or in trover for its wrongful conversion, it is sufficient for plaintiff to allege generally that he is the owner and entitled to the possession, without setting out the source of his title: Reinstein v. Roberts, 34 Or. 87 (55 Pac. 90, 75 Am. St. Rep. 564); Mayes v. Stephens, 38 Or. 512 (63 Pac. 760, 64 Pac. 319). And we think the complaint, in the ease at bar, comes within this rule. It is alleged that plaintiff was the owner and in possession of the property in controversy and entitled to such possession at the time of the alleged conversion by the defendant. The averment that her ownership and possession were special and as a morgagee, was unnecessary, but it did not render the complaint objectionable on the ground that it stated mere conclusions of law. 2. It is next contended that the proof offered by the plaintiff was inadmissible because parol evidence is not competent in an action at law for the purpose of showing a misdescription of the property intended to be included in a chattel mortgage. As a general rule, this may be conceded: Hutton v. Arnett, 51 Ill. 198; First National Bank v. Hendrickson, 61 Minn. 293 (63 N. W. 725). But the plaintiff offered to go further and show that before the error in the mortgage was discovered she had commenced to foreclose it, and had taken possession of the property intended to be mortgaged, and was in such possession at the time of its alleged conversion by the defendant, and this was sufficient to entitle her to maintain an action of trover therefor against a wrongdoer. “It is very generally recognized/’ say the editors of the American and English Encyclopedia of Law, “that the possession of chattels, conferring, as it does, title good as against every one but the true owner, will enable the person in possession to maintain trover therefor against a wrongdoer who takes the chattels from his possession and wrongfully’converts them, and the wrongdoer cannot [561] set up the title of the true owner in defense to the action, or even in mitigation of damages:” 28 Am. & Eng. Enc. Law (2 ed.), 674. The complaint allegés, and the plaintiff offered to prove, that she was in possession of the property in controversy at the time it was taken by the defendant, and this was sufficient to make out a prima, facie case in her favor. Judgment reversed and remanded for new trial. Reversed. Mr. Justice Hailey, having been of counsel, took no part in the decision.