Barber v. Amundson

Collins, J. The only question herein is as to who is 'entitled to the possession of certain grain, — the plaintiff, who, as a mortgagee, claims the right of possession under and by virtue of the conditions of a mortgage in the usual form, default having been made by the mortgagor’s failure to pay the note thereby secured at maturity, or defendant sheriff, who seized the grain after such default, but before the mortgagee had taken possession, and levied on the mortgagor's [362] right and interest therein, by virtue of an execution issued upon a judgment duly rendered against said mortgagor. The good faith and sufficiency of the mortgage, and the regularity of the execution and the proceedings on which it was based, stand admitted, and it will have been observed that the levy was not hostile to the mortgage, but was expressly made subject to it. The sheriff defends his course, and his right to actual possession pending the sale, under the provisions of Laws 1883, ch. 60, § 1, in connection with the statute which regulates and prescribes the manner in which personal property capable of manual delivery shall be levied on and sold. Section 1, supra, which was amendatory of 1878 G. S. ch. 66, § 309, explicitly authorizes a sale upon execution of the right and interest of a mortgagor in mortgaged goods and chattels, the purchaser at such sale acquiring all such right and interest, and being entitled to possession of the property, on compliance with the terms and conditions of the mortgage. This statute is silent, however, as to the manner in which a levy may be made upon the mortgagor’s right and interest, or a sale made; ■ so that we are compelled to construe it, if possible, so as to make it effectual, and also with reference to the statute directly pertaining to seizures and sales of personalty upon execution. The object of the law is to secure, as far as practicable, the application of the mortgagor’s property to the satisfaction of his debts, secured and unsecured, upon principles of justice to both debtor and creditor; and it must not be rendered inoperative, or a nullity, by uncalled-for construction. It clothes an officer holding an execution against a mortgagor with power to sell his right and interest in the mortgaged, chattels, which is nothing more or less than the equity of redemption, and in so doing it inferentially authorizes such officer to perform all acts, and to take such steps, as may be requisite to bring the property to a sale in conformity with existing statutes; and, of course, the mortgagee’s rights are subject to it. In at least two of our sister states a similar statute exists, and in both it has been held that an officer levying an execution upon the mortgagor’s interest in mortgaged chattels has a right to take possession of the same from the mortgagor, and, as against the mortgagee, detain them, in safe and convenient custody, for the time [363] prescribed by law for bringing them to sale on the execution. Cary v. Hewitt, 26 Mich. 228; Louthain v. Miller, 85 Ind. 161, and cases. See, also, Wilson v. Montague, 57 Mich. 638, (24 N. W. Rep. 851;) State v. Milligan, 106 Ind. 109, (5N.E. Rep. 871;) Fugate v. Clarkson, 2 B. Mon. 41; Arnold v. Chapman, 13 R. I. 586; Jones, Chat. Mortg. 556a. The statutes regulating the levy upon and sale of personal property, generally, on execution, require that it be taken into the custody of the officer, if it be capable of manual delivery, as this was, and, when sold, that it be within the view of those attending the sale. This custody must be such as to enable the officer to retain and assert his power and control over it. 1878 G. S. ch. 66, § 272, providing for a levy upon articles which, by reason of their bulk or other cause, cannot be immediately removed, does not apply, because nothing whatsoever stood in the way of the removal of the grain in question, nor is it now claimed that the defendant officer had no right to remove and take it into his actual possession when making the levy. The only contention is that, after demand by the mortgagee, he was without authority to retain it in his possession until a sale could be made upon the execution. In view of the unquestioned authority conferred, to levy upon and sell, the general liability of the officer, and his statutory powers and duties in respect to personalty levied upon by him, it seems obvious that possession of the grain was indispensable to the safe and proper enforcement of the law. If the officer cannot be allowed to take and retain this possession, there is no statutory method for him to pursue, either as to levy or sale. There need be no infringement upon the rights of the mortgagee, if timely sale be made. The purchaser thereat is not entitled to possession until he complies with the terms and conditions of the mortgage, and substantial justice will be promoted if the property be held as herein indicated. The right of an officer to seize and hold mortgaged chattels after the same have been reduced to the possession of a mortgagee for the purposes of foreclosure is not considered at this time. Order affirmed. (Opinion published 54 ÍT. W. Rep. 733.)