Forepaugh v. Pryor

Gilfillan, C. J. The motion of the defendants for judgment on the pleadings was properly denied. Such a motion cannot be granted for insufficiency of the complaint, unless it be so deficient in facts that a general demurrer to it would be sustained. This complaint shows a wrongful taking and detention from plaintiff of the property on which they held a chattel mortgage, and of Nwhieh they had possession at the time of the taking, which facts would justify a recovery, either of the property itself, or its value by way of damages. It also makes out a proper case for a foreclosure of the mortgage by action, which relief it asks. The fact that there is a power of sale in a chattel mortgage does not affect the right to foreclose it by action. Jones on Chat. Mortg. § 777; Packard v. Kingman, 11 Iowa, 219; Green v. Gaston, 56 Miss. 748; McDonald v. Vinson, Id. 497; Briggs v. Oliver, 68 N. Y. 336. Nor does the fact that the mortgagee may recover the possession at law. Marx v. Davis, 56 Miss. 745; Long Dock Co. v. Mallery, 12 N. J. Eq. 93. The only other question in the case is on the validity of plaintiffs’ mortgage. The facts found are not sufficient to impeach it. The fourth finding of the jury, on which defendants rely, is not enough for that purpose. As plaintiffs’ mortgage was upon a valuable consideration, and was duly filed, they could not, unless they had notice of it, be affected by any fraudulent intent on the part of the mortgagor; yet if he had a fraudulent intent, without the plaintiffs having any, or any notice that he had, the finding of the jury to the fourth question would have been the same as it was. That finding ■does not make it appear either that plaintiffs had any such intent, or had notice of any such on the part of the mortgagor. Order affirmed.