Templeton v. Lloyd

¶1On the Merits.

¶2This is an action for the possession of personal property. The cause was tried by the court without the intervention of a jury, resulting in findings and judgment for plaintiff, and defendant appeals.

¶3The complaint alleges, in substance, that the defendant, being the owner of one seven-passenger, 30-60 horse power, Stearns touring car, No. 1,116, valued at $2,500, which he purchased from the Crowe Automobile Company at Portland, Oregon, on May 21, 1909, for value received executed to plaintiff a chattel mortgage on said automobile, to secure the payment of a note of $2,000, due in ninety days from that date at eight per cent per annum, and reasonable attorney’s fees; that the chattel mortgage was duly recorded in Multnomah County, State of Oregon, and is a valid and existing chattel mortgage upon said property, and that said sum is due and unpaid; that on the day of the commencement of this action, and prior thereto, plaintiff demanded payment of the note, and upon defendant’s failure to make such payment plaintiff demanded possession of the property, delivery of which defendant refused, unlawfully withholding the chattels from plaintiff’s possession. Defendant, by his answer, admits the execution of the- note and mortgage upon the automobile to secure payment of $2,000, with interest; admits plaintiff demanded payment of the note, *56and his refusal to pay; also the demand for the possession of said property and his refusal to deliver the same. Further pleads that the note and mortgage were given solely for the purpose of indemnifying plaintiff on account of his signing a note of $700, dated May 21, 1909, for L. E. Templeton, and that there is a suit pending in the same court to foreclose said mortgage. The reply put in issue the new matter of the answer.

¶42. The record in this cause contains no bill of exceptions. The only question to be determined, therefore, is whether or not there is any error of record. This court will not review the findings of fact of the lower court: State v. Drake, 11 Or. 396 (4 Pac. 1204); Page v. Smith, 13 Or. 410 (10 Pac. 833); Miles v. Swanson, 47 Or. 213 (82 Pac. 954). It is claimed by defendant that the complaint, in failing to allege that the plaintiff was entitled to the immediate possession of the personal property in question, does not state facts sufficient to constitute a cause of action, and that the case comes within the rule laid down in Kimball v. Redfield, 33 Or. 292 (54 Pac. 216).

¶5From an examination of the complaint, it will be observed that the execution of the chattel mortgage upon the property in question is alleged, and that the conditions of such mortgage have been broken. The statute provides that “whenever the condition of any mortgage of goods and chattels shall be broken, the mortgagee shall be entitled to the immediate possession of the mortgaged property, and when after breach of the condition of any such mortgage the possession of the mortgaged property shall not be delivered up to the mortgagee upon demand by him, … the mortgagee may recover the possession of such mortgaged property in the manner'provided by Chapter II of Title IV of the Code of Civil Procedure.” Section 7410, L. O. L.

¶6*573. When the conditions of a chattel mortgage have been broken, the lien thereof is converted into a qualified ownership in the mortgagee, entitling him, under the above section of the statute, to the possession of the mortgaged property, and enabling him to maintain an action to recover such possession: Swank v. Elwert, 55 Or. 487 (105 Pac. 901); Case T. M. Co. v. Campbell, 14 Or. 460 (13 Pac. 324). In Casto v. Murray, 47 Or. 57 (81 Pac. 388, 883), a case precisely in point, this court, in an opinion by Mr. Justice Moore, held that upon a state of alleged facts, entitling the plaintiff to possession of the property, a right to the immediate possession thereof is disclosed by reasonable presumption, without a special averment to that effect.

¶7“It is not necessary to allege a fact which the law will presume.”

¶8In the case at bar the plaintiff’s complaint states facts entitling him to the possession of the personal property at the time of the commencement of the action, and does not come within the rule in Kimball v. Redfield, 33 Or. 292 (54 Pac. 216).

¶94. When the mortgagee of chattels, after condition broken, secures possession of the mortgaged property, the mortgagor’s title is not extinguished, and it is necessary that the lien be foreclosed strictly in accordance with the terms of the mortgage, or in the manner provided by law. Backhaus v. Buells, 43 Or. 558 (72 Pac. 976: 73 Pac. 342); Swank v. Elwert, 55 Or. 487 (105 Pac. 901). This rendered it necessary for the plaintiff to foreclose the mortgage after taking possession of the mortgaged property.

¶105. There was no demurrer to the complaint, and all reasonable intendments in favor of the allegations of the complaint will be invoked on this appeal: Quick v. Swing, 53 Or. 149 (99 Pac. 418).

¶11*586. When a defendant wishes to challenge the authority of a court to try an action in replevin in the county in which such action is brought, unless it is alleged in the complaint that the property was taken in such county, he should distinctly specify that objection in his demurrer and thereby call the attention of the court to the point, in order to have the same decided: Marx & Jorgenson v. Croisan, 17 Or. 393 (21 Pac. 310); Byers v. Ferguson, 41 Or. 77 (65 Pac. 1067: 68 Pac. 5).

¶127. In the absence of any demurrer, and after findings of fact, which are of the 'same effect as the verdict of a jury, and judgment thereon, we think the complaint is sufficient to sustain the judgment.

¶13Finding no error in the record, it follows that the judgment of the lower court is affirmed; and it is so ordered.

¶14Affirmed.